EXHIBIT 2(c)
AGREEMENT AND PLAN OF MERGER
by and between
GENERAL MOTORS CORPORATION
and
CORPORATION
DATED AS OF __________, 1997
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Agreement") is made and entered
into as of __________, 1997 by and between General Motors Corporation, a
Delaware corporation ("GM"), and __________ Corporation, a Delaware
corporation and a wholly owned subsidiary of GM ("Mergeco"). GM and Mergeco
are sometimes referred to herein individually as a "Party" and collectively
as the "Parties." Certain capitalized terms used herein have the meanings
ascribed to such terms in Section 1 hereof.
WHEREAS, ▇▇▇▇▇▇ is an indirect wholly owned subsidiary of GM;
WHEREAS, ▇▇▇▇▇▇ and Raytheon desire to combine Raytheon's business with
the Defense Business pursuant to the ▇▇▇▇▇▇ Merger Agreement;
WHEREAS, as a condition to entering into the ▇▇▇▇▇▇ Merger Agreement,
Raytheon has required that GM and ▇▇▇▇▇▇ agree that, at the time of
consummation of the ▇▇▇▇▇▇ Merger, ▇▇▇▇▇▇ be an independent, publicly owned
company, comprising the Defense Business;
WHEREAS, Mergeco has been formed for the purpose of effectuating the
spin-off of ▇▇▇▇▇▇ from GM and certain related transactions;
WHEREAS, the Parties intend that, subject to the terms and conditions
hereof, Mergeco will merge with and into GM in a tax-free (to GM and the
holders of GM Common Stocks) transaction pursuant to which, among other
things, (i) the GM Class H Stockholders will receive a distribution of shares
of ▇▇▇▇▇▇ Class A Common Stock in respect of their shares of GM Class H
Common Stock and GM Class H Common Stock will be recapitalized into GM Class
HT Common Stock and (ii) the GM $1-2/3 Common Stockholders will receive a
distribution of shares of ▇▇▇▇▇▇ Class A Common Stock in respect of their
shares of GM $1-2/3 Common Stock; and
WHEREAS, the GM board of directors has determined that the transactions
contemplated hereby are desirable and in the best interests of GM and the
holders of the GM Common Stocks and, by resolutions duly adopted, has
approved and adopted this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending
to be legally bound hereby, the Parties hereby agree as follows:
Section 1. Definitions
"Agreement" has the meaning set forth in the preface above.
"Closing" has the meaning set forth in Section 2(b) below.
"Closing Time" has the meaning set forth in Section 2(b) below.
"Code" means the Internal Revenue Code of 1986, as amended,
together with the rules and regulations promulgated thereunder.
"Defense Business" has the meaning ascribed to such term in the
Master Separation Agreement.
"Delaware Certificate of Merger" has the meaning set forth in
Section 2(c) below.
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"Delaware General Corporation Law" means the General Corporation
Law of the State of Delaware, as amended.
"Delco" has the meaning ascribed to such term in the Master
Separation Agreement.
"EDS" means Electronic Data Systems Corporation, a Delaware
corporation and a former wholly owned subsidiary of GM.
"Effective Time" has the meaning set forth in Section 2(d)(i)
below.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"GM" has the meaning set forth in the preface above.
"GM Class H Common Stock" means the Class H Common Stock, $0.10
par value per share, of GM.
"GM Class H Stockholder" means any holder of record of GM Class
H Common Stock.
"GM Class HT Common Stock" means the Class H Common Stock, $0.10
par value per share, of GM, as described on Exhibit A attached hereto.
"GM Common Stocks" means collectively the GM $1-2/3 Common Stock
and the GM Class H Common Stock.
"GM Implementation Agreement" means the Implementation Agreement
dated as of January 16, 1997 by and between GM and Raytheon, as amended from
time to time.
"GM Transactions" means collectively (i) the HEC Reorganization,
(ii) the ▇▇▇▇▇▇ Recapitalization, (iii) the spin-off of ▇▇▇▇▇▇ from GM as
contemplated hereby, (iv) the recapitalization of GM Class H Common Stock
into GM Class HT Common Stock as contemplated hereby, (v) the consummation
of the Spin-Off Merger pursuant hereto, (vi) the execution and delivery of
each of the Separation Agreements and (vii) the consummation of the other
transactions and events contemplated hereby.
"GM $1-2/3 Common Stock" means, as of immediately prior to the
Effective Time, the Common Stock, $1-2/3 par value per share, of GM and, at
and after the Effective Time, the Common Stock, $1-2/3 par value per share,
of the Surviving Corporation.
"GM $1-2/3 Common Stockholder" means any holder of record of GM
$1-2/3 Common Stock.
"Governmental Authority" means any court, arbitral tribunal,
administrative agency or commission or other governmental or regulatory body,
agency, instrumentality or authority.
"▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
"HEC" means ▇▇▇▇▇▇ Electronics Corporation, a Delaware
corporation, a wholly owned subsidiary of GM and the sole stockholder of
▇▇▇▇▇▇.
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"HEC Reorganization" means the Telecom Spin-Off, the transfer of
Delco by HEC to GM or another subsidiary of GM, the merger of ▇▇▇▇▇▇
Subsidiary with and into ▇▇▇▇▇▇ and all related transfers of assets and
liabilities by and among ▇▇▇▇▇▇, Telecom and Delco and their respective
subsidiaries.
"▇▇▇▇▇▇" means HE Holdings, Inc., a Delaware corporation and an
indirectly wholly owned subsidiary of GM.
"▇▇▇▇▇▇ Class A Common Stock" means the Class A Common Stock,
$0.01 par value per share, of ▇▇▇▇▇▇, as set forth in Exhibit A to the ▇▇▇▇▇▇
Merger Agreement.
"▇▇▇▇▇▇ Class B Common Stock" means the Class B Common Stock,
$0.01 par value per share, of ▇▇▇▇▇▇, as set forth in Exhibit A to the ▇▇▇▇▇▇
Merger Agreement.
"▇▇▇▇▇▇ Distribution Ratio" means the relationship between (i)
the number of shares of ▇▇▇▇▇▇ Class A Common Stock to be allocated and
distributed to the holders of GM $1-2/3 Common Stock and (ii) the number of
shares of ▇▇▇▇▇▇ Class A Common Stock to be allocated and distributed to the
holders of GM Class H Common Stock, in each case pursuant to the Spin-Off
Merger, as set forth in Section 2(d) hereof.
"▇▇▇▇▇▇ Merger" means the merger of Raytheon with and into
▇▇▇▇▇▇, with ▇▇▇▇▇▇ as the surviving corporation.
"▇▇▇▇▇▇ Merger Agreement" means the Agreement and Plan of Merger
dated as of January 16, 1997 by and between ▇▇▇▇▇▇ and Raytheon, as amended
from time to time.
"▇▇▇▇▇▇ Recapitalization" means the adoption by ▇▇▇▇▇▇ of a
certificate of incorporation authorizing the ▇▇▇▇▇▇ Class A Common Stock and
▇▇▇▇▇▇ Class B Common Stock and the recapitalization of the shares of ▇▇▇▇▇▇
Common Stock owned by GM into shares of ▇▇▇▇▇▇ Class A Common Stock.
"▇▇▇▇▇▇ Spin-Off Separation Agreement" means the ▇▇▇▇▇▇
Spin-Off Separation Agreement attached as Exhibit J to the Master Separation
Agreement, as amended from time to time in accordance with the terms thereof
and Section 4.2(b) of the GM Implementation Agreement.
"▇▇▇▇▇▇ Subsidiary" means ▇▇▇▇▇▇ Aircraft Company, a Delaware
corporation and, immediately prior to the consummation of the transactions
constituting the HEC Reorganization, a wholly owned subsidiary of ▇▇▇▇▇▇.
"Intercompany Payment" has the meaning ascribed to such term in
the ▇▇▇▇▇▇ Merger Agreement.
"IRS" means the Internal Revenue Service.
"Master Separation Agreement" means the Master Separation
Agreement attached as Exhibit B to the GM Implementation Agreement, as
amended from time to time in accordance with the terms thereof and Section
4.2(b) of the GM Implementation Agreement.
"Mergeco" has the meaning set forth in the preface above.
"Mergeco Share" means any share of the Common Stock, no par
value, of Mergeco.
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"▇▇▇▇▇▇▇ ▇▇▇▇▇" has the meaning set forth in Section 3(c) below.
"Parties" has the meaning set forth in the preface above.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity (or any department,
agency or political subdivision thereof).
"Raytheon" means Raytheon Company, a Delaware corporation.
"Registration Statements" means all registration statements
under the Securities Act and the proxy or consent solicitation statement
under the Exchange Act required to be filed by GM and ▇▇▇▇▇▇ in connection
with the GM Transactions.
"Requisite Stockholder Approval" means the approval of the
holders of (i) a majority of the voting power of all outstanding shares of
the GM Common Stocks, voting together as a single class based on their
respective per share voting power pursuant to the provisions set forth in
GM's Amended and Restated Certificate of Incorporation, as amended, (ii) a
majority of the outstanding shares of GM $1-2/3 Common Stock, voting as a
separate class, and (iii) a majority of the outstanding shares of GM Class H
Common Stock, voting as a separate class.
"Ruling" has the meaning set forth in Section 3(e) below.
"Salomon Brothers" has the meaning set forth in Section 3(c)
below.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Separation Agreements" means collectively the Master Separation
Agreement and all of the other agreements contemplated thereby.
"Spin-Off Merger" has the meaning set forth in Section 2(a)
below.
"Subsidiary" means, with respect to a Party, any corporation or
other organization, whether incorporated or unincorporated, of which at least
a majority of the securities or interests having by the terms thereof
ordinary voting power to elect at least a majority of the board of directors
or others performing similar functions with respect to such corporation or
other organization is directly or indirectly owned or controlled by such
Party or by any one or more of its subsidiaries, or by such Party and one or
more of its subsidiaries.
"Supplemental Ruling" has the meaning set forth in Section 3(f)
below.
"Surviving Corporation" has the meaning set forth in Section
2(a) below.
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"Tax-Free Status of the EDS Split-Off" means the nonrecognition
of taxable gain or loss for United States federal income tax purposes to GM
and GM's current or former stockholders, including, without limitation, the
former holders of GM's Class E Common Stock, par value $0.10 per share, in
connection with the split-off of EDS from GM which split-off was consummated
on June 7, 1996.
"Telecom" has the meaning ascribed to such term in the Master
Separation Agreement.
"Telecom Spin-Off" means the spin-off of Telecom by ▇▇▇▇▇▇ to
GM.
Section 2. Basic Transaction.
(a) The Spin-Off Merger. On the terms and subject to the
conditions of this Agreement, Mergeco shall merge with and into GM (the
"Spin-Off Merger") at and as of the Effective Time. GM shall be the
corporation surviving the Spin-Off Merger (the "Surviving Corporation").
(b) The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the
offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ at
such other place as GM may determine, on such date and at such time as GM may
determine (the "Closing Time"), which time shall be on or after the time at
which all conditions to the obligations of GM to consummate the transactions
contemplated hereby are satisfied or waived by GM and which time shall be
immediately prior to the consummation of the ▇▇▇▇▇▇ Merger.
(c) Actions at the Closing. At the Closing, GM will cause
to be filed with the Secretary of State of the State of Delaware, as provided
in Section 251 of the Delaware General Corporation Law, a Certificate of
Merger (the "Delaware Certificate of Merger").
(d) Effects of Spin-Off Merger.
(i) General. The Spin-Off Merger shall become
effective at such time (the "Effective Time") as GM files the Delaware
Certificate of Merger with the Secretary of State of the State of Delaware or
as is otherwise specified in the Delaware Certificate of Merger. The
Spin-Off Merger shall have the effects set forth in Section 259 of the
Delaware General Corporation Law. The Surviving Corporation may, at any time
after the Effective Time, take any action (including the execution and
delivery of any document) in the name and on behalf of either GM or Mergeco
in order to carry out and effectuate the transactions contemplated by this
Agreement.
(ii) Certificate of Incorporation. At the Effective
Time, Article Fourth of the Certificate of Incorporation of GM will be
amended to read in its entirety as set forth in Exhibit A attached hereto and
the Certificate of Incorporation of GM as in effect at and as of immediately
prior to the Effective Time, with Article Fourth as so amended and with all
Certificates of Designations then in effect, shall be the Certificate of
Incorporation of the Surviving Corporation.
(iii) Bylaws. The Bylaws of GM as in effect at and
as of immediately prior to the Effective Time will remain the Bylaws of the
Surviving Corporation without any modification or amendment as a result of
the Spin-Off Merger.
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(iv) Directors and Officers. The directors and
officers of GM in office at and as of immediately prior to the Effective Time
will remain the directors and officers of the Surviving Corporation
(retaining their respective positions and terms of office).
(v) Distribution on and Recapitalization of GM
Class H Common Stock. At and as of the Effective Time, by virtue of the
Spin-Off Merger and without any action on the part of GM, Mergeco, any holder
of any capital stock of GM or any other Person, (A) each share of GM Class H
Common Stock issued and outstanding as of immediately prior to the Effective
Time (other than shares to be canceled in accordance with Section 2(d)(viii))
shall be recapitalized and converted into one fully paid and nonassessable
share of GM Class HT Common Stock and the right to receive a distribution of
___ fully paid and nonassessable shares of ▇▇▇▇▇▇ Class A Common Stock and
(B) all such shares of GM Class H Common Stock shall be canceled and shall
cease to exist. No share of GM Class H Common Stock shall be exchanged for
GM $1-2/3 Common Stock at a 120% exchange ratio as currently provided under
certain circumstances in the GM Certificate of Incorporation by virtue of the
Spin-Off Merger. Accordingly, from and after the Effective Time, (x) for all
purposes of determining the record holders of GM Class HT Common Stock and
▇▇▇▇▇▇ Class A Common Stock, the holders of GM Class H Common Stock as of
immediately prior to the Effective Time shall be deemed to be holders of GM
Class HT Common Stock and ▇▇▇▇▇▇ Class A Common Stock distributed to such
holders pursuant to this subsection and (y) subject to any transfer of such
stock, each such holder shall be entitled to receive all dividends payable
on, and exercise voting rights and all other rights and privileges with
respect to, GM Class HT Common Stock and ▇▇▇▇▇▇ Class A Common Stock
distributed to such holders pursuant to this subsection. Each such holder
shall be entitled, upon proper surrender (in accordance with the requirements
specified in the letter of transmittal and other instructions provided to
such holder following the Effective Time) of the certificate or certificates
representing the shares of GM Class H Common Stock formerly held by such
holder, to receive one or more certificates representing the shares of GM
Class HT Common Stock and one or more certificates representing the shares of
▇▇▇▇▇▇ Class A Common Stock then held by such holder.
(vi) Distribution on and Conversion of GM $1-2/3
Common Stock. At and as of the Effective Time, by virtue of the Spin-Off
Merger and without any action on the part of GM, Mergeco, any holder of any
capital stock of GM or any other Person, each share of GM $1-2/3 Common Stock
issued and outstanding as of immediately prior to the Effective Time (subject
to Section 2(d)(viii)) shall be converted into (A) one fully paid and
nonassessable share of GM $1-2/3 Common Stock of the Surviving Corporation
having the same designations, rights, powers and preferences, and the same
qualifications, limitations and restrictions thereof, as the share of GM
$1-2/3 Common Stock being converted pursuant thereto and (B) the right to
receive a distribution of ___ fully paid and nonassessable shares of ▇▇▇▇▇▇
Class A Common Stock. Accordingly, from and after the Effective Time,
(x) for all purposes of determining the record holders of ▇▇▇▇▇▇ Class A
Common Stock, the holders of GM $1-2/3 Common Stock as of immediately prior
to the Effective Time shall be deemed to be holders of ▇▇▇▇▇▇ Class A Common
Stock distributed to such holders pursuant to this subsection and (y) subject
to any transfer of such stock, each such holder shall be entitled to receive
all dividends payable on, and exercise voting rights and all other rights and
privileges with respect to, ▇▇▇▇▇▇ Class A Common Stock distributed to such
holder pursuant to this subsection. Without any action on the part of any
holder of GM $1-2/3 Common Stock, following the Effective Time each such
holder shall receive one or more certificates representing the shares of
▇▇▇▇▇▇ Class A Common Stock then held by such holder as a result of the
foregoing.
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(vii) Other GM Capital Stock. All classes and series
of GM capital stock outstanding as of immediately prior to the Effective
Time, other than GM Class H Common Stock and GM $1-2/3 Common Stock, shall
remain unaffected as a result of the Spin-Off Merger, except as otherwise set
forth in Exhibit A attached hereto. At and as of the Effective Time, the
capital stock of the Surviving Corporation, other than the Class HT Common
Stock (which shall be represented by new certificates as provided in Section
2(d)(v) above), shall be represented by the certificates representing the
corresponding capital stock of GM outstanding as of immediately prior to the
Effective Time.
(viii) Treasury Shares. At and as of the Effective
Time, by virtue of the Spin-Off Merger, without any action on the part of GM,
Mergeco or any other Person, each share of GM Class H Common Stock held by GM
as treasury stock as of immediately prior to the Effective Time shall be
canceled and retired and shall cease to exist, and no stock or other
consideration shall be delivered in exchange therefor. No share of GM $1-2/3
Common Stock held by GM as treasury stock as of immediately prior to the
Effective Time shall be converted into the right to receive a distribution of
any shares of ▇▇▇▇▇▇ Class A Common Stock in connection herewith.
(ix) Mergeco Shares. Each Mergeco Share issued and
outstanding as of immediately prior to the Effective Time shall be canceled
and retired and shall cease to exist and no stock or other consideration
shall be delivered in exchange therefor.
(e) Closing of Transfer Records. After the Effective Time,
transfers of shares of GM Class H Common Stock outstanding prior to the
Effective Time shall not be made on the stock transfer books of the Surviving
Corporation or otherwise.
(f) Exchange Procedures. Certificates representing the
shares of GM Class HT Common Stock and ▇▇▇▇▇▇ Class A Common Stock to which
holders of GM Common Stocks are entitled pursuant to Sections 2(d)(v) and
(vi) shall be delivered as contemplated in Section 2.1(d) of the ▇▇▇▇▇▇
Spin-Off Separation Agreement.
(g) GM Ownership of ▇▇▇▇▇▇ Class A Common Stock. As of
immediately after the Effective Time, GM shall not own any shares of ▇▇▇▇▇▇
Class A Common Stock.
Section 3. Conditions to Obligation to Close. The obligation of
GM to consummate the Spin-Off Merger is subject to satisfaction of the
following conditions:
(a) no temporary restraining order, preliminary or permanent
injunction or other order or decree which prevents the consummation of any of
the transactions contemplated by this Agreement shall have been issued and
remain in effect, and no statute, rule or regulation shall have been enacted
by any Governmental Authority which prevents the consummation of any of the
transactions contemplated by this Agreement;
(b) the GM Transactions, including the adoption of this
Agreement, shall have received the Requisite Stockholder Approval;
(c) GM shall have received from each of ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Inc ("Salomon Brothers") a written opinion, dated on or about the date of the
proxy or consent solicitation statement included in the Registration
Statements,
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addressed to GM's board of directors that, as of such date, on the
basis of and subject to the assumptions, limitations and other matters set
forth therein, taking into account all relevant aspects of the GM
Transactions, the consideration to be provided to GM and its subsidiaries and
to the holders of GM $1-2/3 Common Stock and the holders of GM Class H Common
Stock in the GM Transactions is fair, from a financial point of view, to the
holders of GM $1-2/3 Common Stock and to the holders of GM Class H Common
Stock, together with a consent authorizing the inclusion of such opinion in
the Registration Statements, and neither of such opinions shall have been
withdrawn, revoked or modified;
(d) GM shall have received from ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. a
written confirmation, dated on or about the date of the proxy or consent
solicitation statement included in the Registration Statements, of its
opinion, dated January 16, 1997, to the boards of directors of GM, HEC and
▇▇▇▇▇▇ that, as of such date, on the basis of and subject to the assumptions,
limitations and other matters set forth therein, the Aggregate Consideration
(as defined therein) is fair to the GM Group (as defined therein) as a whole,
together with a consent authorizing the use of such opinion and confirmation
in connection with the Registration Statements, and neither of such opinion
or confirmation shall have been withdrawn, revoked or modified;
(e) GM shall have received a ruling from the IRS (the
"Ruling"), in form and substance reasonably satisfactory to GM, to the effect
that each of (i) the distribution of ▇▇▇▇▇▇ Class A Common Stock to GM Class
H Stockholders and GM $1-2/3 Stockholders as contemplated by this Agreement
and (ii) the Telecom Spin-Off will constitute a tax-free (to the applicable
distributing corporation and its stockholders) distribution under Sections
355 and 368(a)(1)(D) of the Code, and GM shall not have been notified by the
IRS that the Ruling has been withdrawn, invalidated or modified in any way,
and GM shall not have determined in good faith, on the basis of advice of tax
counsel, that the representations and assumptions underlying the Ruling are
not true and correct in all material respects;
(f) GM shall have received a ruling from the IRS (the
"Supplemental Ruling"), in form and substance reasonably satisfactory to GM,
that the consummation of the transactions contemplated by this Agreement and
the consummation of the ▇▇▇▇▇▇ Merger will not in any way jeopardize the
Tax-Free Status of the EDS Split-Off, and GM shall not have been notified by
the IRS that the Supplemental Ruling has been withdrawn, invalidated or
modified in any way, and GM shall not have determined in good faith, on the
basis of advice of tax counsel, that the representations and assumptions
underlying the Supplemental Ruling are not true and correct in all material
respects;
(g) GM shall have received an opinion from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
in form and substance reasonably satisfactory to GM, to the effect that, on
the basis of and subject to the assumptions, representations, limitations and
other matters set forth therein, (i) the recapitalization of GM Class H
Common Stock into GM Class HT Common Stock contemplated hereby will be
tax-free to GM and the holders thereof and (ii) each of GM Class H Common
Stock and GM Class HT Common Stock is stock of GM for U.S. federal income tax
purposes;
(h) each of the HEC Reorganization and the ▇▇▇▇▇▇
Recapitalization shall have been fully consummated;
(i) each of the Separation Agreements shall have been fully
executed and delivered, and each of the same shall be in full force and
effect;
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(j) GM's board of directors shall not have determined in
good faith, in the exercise of its fiduciary obligations under applicable
law, on the basis of oral or written advice of outside counsel, that
consummation of the GM Transactions would not be both in the best interests
of GM and its common stockholders and fair to the holders of GM $1-2/3 Common
Stock and to the holders of GM Class H Common Stock;
(k) all conditions to the ▇▇▇▇▇▇ Merger, other than the
consummation of the Spin-Off Merger, shall have been satisfied or waived
(provided that any such waiver by ▇▇▇▇▇▇ shall have been made only with GM's
consent) and the parties to the ▇▇▇▇▇▇ Merger Agreement shall be prepared to
cause the consummation of the ▇▇▇▇▇▇ Merger immediately following the
Effective Time;
(l) all applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and any applicable similar law of
any foreign jurisdiction with respect to the GM Transactions shall have
expired or otherwise been terminated and the Parties shall have made all
other required notifications with respect to the GM Transactions and shall
have received all other required authorizations, consents and approvals with
respect to the GM Transactions of all governments and governmental agencies
to which GM, its Subsidiaries or the GM Transactions are subject (including,
without limitation, those of foreign governments and governmental agencies);
(m) the Registration Statements shall have become effective
under the Securities Act and the Exchange Act and no stop order suspending
the effectiveness of any of the Registration Statements shall have been
issued and no proceeding for that purpose shall have been initiated by the
SEC;
(n) the shares of GM Class HT Common Stock and ▇▇▇▇▇▇ Class
A Common Stock shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance; and
(o) the Intercompany Payment shall have been paid in full.
GM may waive any condition specified in this Section 3 in its sole
discretion.
Section 4. Termination.
(a) Termination of Agreement. GM may terminate this
Agreement (with the prior authorization of its board of directors, if
applicable, whether before or after receipt of the Requisite Stockholder
Approval) as provided below:
(i) GM may terminate this Agreement by giving
written notice to Mergeco at any time prior to the Effective Time in the
event that GM's board of directors determines in good faith, in the exercise
of its fiduciary obligations under applicable law, on the basis of oral or
written advice of outside counsel, (A) that consummation of the GM
Transactions as then set forth herein would not be both in the best interests
of GM and its common stockholders and fair to the holders of GM $1-2/3 Common
Stock and the holders of GM Class H Common Stock and (B) that the foregoing
determination could not reasonably be avoided by adjusting the ▇▇▇▇▇▇
Distribution Ratio so as to satisfy the conditions set forth in Section 1.1
of the GM Implementation Agreement as of the date of such adjustment;
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(ii) GM may terminate this Agreement by giving
written notice to Mergeco at any time prior to the Effective Time in the
event that (A) any opinion or confirmation referred to in Section 3(c) is
withdrawn or revoked or (B) any opinion or confirmation referred to in
Section 3(d) is withdrawn or revoked.
(iii) GM may terminate this Agreement by giving
written notice to Mergeco at any time prior to the Effective Time in the
event that GM has been notified by the IRS that the Ruling has been
withdrawn, invalidated or modified in an adverse manner or has been notified
by the IRS or otherwise reasonably determines, on the basis of advice of
outside tax counsel, that the consummation of any of (A) the distribution of
▇▇▇▇▇▇ Class A Common Stock to GM Class H Stockholders and GM $1-2/3
Stockholders, (B) the Telecom Spin-Off and (C) the recapitalization of the GM
Class H Common Stock into GM Class HT Common Stock will not be tax-free as
contemplated by Section 3(e) or Section 3(g);
(iv) GM may terminate this Agreement by giving
written notice to Mergeco at any time prior to the Effective Time in the
event that GM has been notified by the IRS that the Supplemental Ruling has
been withdrawn, invalidated or modified or has been notified by the IRS or
otherwise reasonably determines, on the basis of advice of outside tax
counsel, that the consummation of the transactions contemplated by this
Agreement will jeopardize the Tax-Free Status of the EDS Split-Off;
(v) GM may terminate this Agreement by giving
written notice to Mergeco in the event the GM Transactions, including the
adoption of this Agreement, fail to receive the Requisite Stockholder
Approval at the time contemplated by the Registration Statements; and
(vi) GM may terminate this Agreement by giving
written notice to Mergeco at any time following the termination of the ▇▇▇▇▇▇
Merger Agreement or the GM Implementation Agreement in accordance with their
terms.
(b) Effect of Termination. If GM terminates this Agreement
pursuant to Section 4(a) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other
Party (except for any liability of any Party then in breach).
Section 5. Amendment. Subject to Section 4.2(b) of the GM
Implementation Agreement, this Agreement may be amended at any time and from
time to time if set forth in a writing executed by both Parties; provided,
however, that any such amendment made after this Agreement has received the
Requisite Stockholder Approval shall not (i) alter or change the amount or
kind of shares, securities, cash and/or property to be distributed to, or the
rights to be received in exchange for or on recapitalization and conversion
of, the GM Class H Common Stock, (ii) alter or change the amount or kind of
shares, securities, cash and/or property to be distributed to, or the rights
to be received by, GM $1-2/3 Common Stockholders, (iii) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation or
(iv) alter or change any of the terms and conditions of this Agreement if
such alteration or change would adversely affect the holders of any class or
series of GM capital stock.
* * * * *
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IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement on as of the date first above written.
GENERAL MOTORS CORPORATION
By:______________________________
Name:
Its:
____________________CORPORATION
By:______________________________
Name:
Its:
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