Common use of Capitalization; Class H Fraction Clause in Contracts

Capitalization; Class H Fraction. (a) As of the date of this Agreement: GM's authorized capital stock consists of 2,000,000,000 shares of GM $1-2/3 Common Stock; 3,600,000,000 shares of GM Class H Common Stock; 6,000,000 shares, no par value per share, of Preferred Stock ("GM Preferred Stock"); and 100,000,000 shares, $0.10 par value per share, of Preference Stock ("GM Preference Stock"). As of April 7, 2003: 1,107,518,293 shares of GM Class H Common Stock were issued and outstanding, 1,444,030 shares of GM Class H Common Stock were held by GM as treasury shares, 92,888,852 shares of GM Class H Common Stock were reserved for issuance upon exercise of outstanding options, 1,928,644 shares of GM Class H Common Stock were issuable with respect to awards under the Xxxxxx Long Term Achievement Plan (the "LTAP") and 3,209,565 shares of GM Class H Common Stock were issuable with respect to restricted stock or restricted stock units. Each outstanding share of GM Class H Common Stock is duly authorized and validly issued, fully paid and nonassessable and has not been issued in violation of any preemptive or similar rights. GM has no authorized or outstanding bonds, debentures, notes or other obligations or securities, the holders of which have the right to vote with the stockholders of GM on any matter. (b) Other than as set forth in Section 4.5(b) of the GM Disclosure Schedule, there are no outstanding subscriptions, options, warrants, puts, calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale or transfer of any GM Class H Common Stock, nor are there outstanding any securities which are convertible into or exchangeable for any shares of GM Class H Common Stock and, except as expressly provided by the GM Transaction Agreements, GM has no obligation of any kind to issue any additional shares of GM Class H Common Stock or to pay for shares of GM Class H Common Stock. The issuance and sale of all of the shares of capital stock described in this Section 4.5, including the GM Class H Common Stock, have been in compliance with federal and state securities laws. Section 4.5(b) of the GM Disclosure Schedule accurately sets forth, as of the date indicated, the number of shares of GM Class H Common Stock issuable upon exercise of options to purchase shares of GM Class H Common Stock, and the exercise prices with respect thereto, along with a list of the options to purchase shares of GM Class H Common Stock held by each corporate officer of GM and Xxxxxx. Other than (i) the First Amended and Restated Registration Rights Agreement, dated as of March 12, 2003, by and among GM, U.S. Trust Company of New York ("U.S. Trust"), as Trustee of the GM Special Salaried Employees Pension Trust established under the GM Retirement Program for Salaried Employees (the "GM Salaried Pension Plan"), U.S. Trust, as Trustee of the GM Special Hourly Employees Pension Trust established under the GM Hourly-Rate Employees Pension Plan (the "GM Hourly Pension Plan"), and U.S. Trust, as Trustee of the Sub-Trust of the GM Welfare Benefit Trust established under the GM Welfare Benefit Trust, a voluntary employees' beneficiary association trust established to fund certain collectively bargained hourly retiree health care benefits under the GM Health Care Program for Hourly Employees and certain collectively bargained hourly retiree life insurance benefits under the GM Life and Disability Benefits Program for Hourly Employees and such benefits under other applicable collectively bargained welfare plans (the "VEBA" and, together with the GM Salaried Pension Plan and the GM Hourly Pension Plan, the "GM Employee Benefit Plans") (collectively, the "Current GM Employee Benefit Plans Registration Rights Agreement") and the First Amended and Restated Transfer Agreement (the "GM Employee Benefit Plans Transfer Agreement"), dated March 12, 2003, between GM and U.S. Trust, as trustee for the GM Salaried Pension Plan, the GM Hourly Pension Plan and the VEBA and all side letters and other agreements and arrangements related thereto and to the Current GM Employee Benefit Plans Registration Rights Agreement, and (ii) the Registration Rights Agreement, dated as of April 28, 1999, between GM and PRIMESTAR, Inc., and certain related agreements and arrangements relating thereto (collectively, the "PRIMESTAR Registration Rights Agreement"), neither GM nor any GM Affiliate has entered into or agreed to enter into any contract, agreement or understanding (other than such other contracts, agreements or understandings contemplated by this Agreement, the Merger Agreement or the Separation Agreement) that would require registration of any shares of GM Class H Common Stock under the Securities Act or under any state securities law or granted registration rights with respect to any shares of GM Class H Common Stock to any Person. (c) As of April 3, 2003, the numerator of the Class H Fraction was 1,107,518,293 and the denominator of the Class H Fraction was 1,381,891,609, in each case as determined as of such point in time rather than as an average with respect to any accounting period.

Capitalization; Class H Fraction. (a) As of the date of this Agreement: , GM's authorized capital stock consists of 2,000,000,000 shares of GM $1-2/3 Common Stock; 3,600,000,000 shares of GM Class H Common Stock; 6,000,000 shares, no par value per share, of Preferred Stock ("GM Preferred Stock"); and 100,000,000 shares, $0.10 par value per share, of Preference Stock ("GM Preference Stock")) of which 2,669,633 shares are designated as GM Series H Preference Stock. As of April 7October 25, 2003: 1,107,518,293 2001, (i) 555,503,649 shares of GM $1-2/3 Common Stock were issued and outstanding, 200,795,732 shares of GM $1-2/3 Common Stock were held by GM as treasury shares, 336,512 shares of GM $1-2/3 Common Stock were reserved for issuance upon exercise of outstanding options and 27,093 shares of GM $1-2/3 Common Stock were issuable with respect to awards under the LTAP; (ii) 876,982,994 shares of GM Class H Common Stock were issued and outstanding, 1,444,030 81,564,668 shares of GM Class H Common Stock were held by GM as treasury shares, 92,888,852 84,535 shares of GM Class H Common Stock were reserved for issuance upon exercise of outstanding options, 1,928,644 1,048,325 shares of GM Class H Common Stock were issuable with respect to awards under the Xxxxxx Long Term Achievement Plan (the "LTAP") LTAP and 3,209,565 139,293 shares of GM Class H Common Stock were issuable with respect to restricted stock or restricted stock units; (iii) no shares of GM Preferred Stock were issued and outstanding; and (iv) 2,669,633 shares of GM Series H Preference Stock were issued and outstanding and no shares of GM Series H Preference Stock were held by GM as treasury shares. Each outstanding share of GM capital stock, including the GM Class H Common Stock and the GM Series H Preference Stock, is duly authorized and validly issued, fully paid and nonassessable and has not been issued in violation of any preemptive or similar rights. GM has no authorized or outstanding bonds, debentures, notes or other obligations or securities, the holders of which have the right to vote with the stockholders of GM on any matter. (b) Other than the GM Series H Preference Stock, any shares of GM Class H Common Stock to be issued pursuant to any GM Debt/Equity Exchange, as contemplated by the Merger Agreement or as set forth in Section 4.5(b2.5(b) of the disclosure schedule delivered by GM to EchoStar and dated as of the date of this Agreement (the "GM Disclosure Schedule"), there are no outstanding subscriptions, options, warrants, puts, calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale or transfer of any GM Class H Common Stock, nor are there outstanding any securities which are convertible into or exchangeable for any shares of GM Class H Common Stock and, except as expressly provided by the GM Transaction Agreements, GM has no obligation of any kind to issue any additional shares of GM Class H Common Stock or to pay for shares of GM Class H Common Stock. The issuance and sale of all of the shares of capital stock described in this Section 4.52.5, including the GM Class H Common Stock and the GM Series H Preference Stock, have been in compliance with federal and state securities laws. Section 4.5(b2.5(b) of the GM Disclosure Schedule accurately sets forth, as of the date indicated, forth the number of shares of GM Class H Common Stock issuable upon exercise of options to purchase shares of GM Class H Common Stock, and the exercise prices with respect thereto, along with a list of the options to purchase shares of GM Class H Common Stock held by each corporate officer of GM and XxxxxxHughes. Other than (i) the First Amended and Restated Registration Rights Agreement, dated xxxxd as of March 12July 1, 20032000, by and among GM, U.S. United States Trust Company of New York ("U.S. Trust"), as Trustee of the GM Special Salaried Employees Pension Trust established under the GM Retirement Program for Salaried Employees (the "GM Salaried Pension Plan"), U.S. Trust, as Trustee of the GM Special Hourly Employees Pension Trust established under the GM Hourly-Rate Employees Pension Plan (the "GM Hourly Pension Plan"), and U.S. Trust, as Trustee of the Sub-Trust of the GM Welfare Benefit Trust established under the GM Welfare Benefit Trust, a voluntary employees' beneficiary association trust established to fund certain collectively bargained hourly retiree health care benefits under the GM Health Care Program for Hourly Employees and certain collectively bargained hourly retiree life insurance benefits under the GM Life and Disability Benefits Program for Hourly Employees and such benefits under other applicable collectively bargained welfare plans (the "VEBA" andplans, together with the GM Salaried Pension Plan and the GM Hourly Pension Plan, the "GM Employee Benefit Plans") certain related agreements and arrangements relating thereto (collectively, the "Current GM Employee Benefit Pension Plans Registration Rights Agreement"), (ii) the Registration Rights Agreement, dated as of June 21, 1999, between GM and the First Amended America Online, Inc. ("AOL"), and Restated Transfer Agreement certain related agreements and arrangements relating thereto (collectively, the "GM Employee Benefit Plans Transfer AOL Registration Rights Agreement"), dated March 12, 2003, between GM and U.S. Trust, as trustee for the GM Salaried Pension Plan, the GM Hourly Pension Plan and the VEBA and all side letters and other agreements and arrangements related thereto and to the Current GM Employee Benefit Plans Registration Rights Agreement, and (iiiii) the Registration Rights Agreement, dated as of April 28, 1999, between GM and PRIMESTAR, Inc., and certain related agreements and arrangements relating thereto (collectively, the "PRIMESTAR Registration Rights Agreement")) and (iv) the Registration Rights Letter Agreement, neither GM nor any GM Affiliate (as defined below) has entered into or agreed to enter into any contract, agreement or understanding (other than such other contracts, agreements or understandings contemplated by this Agreement, the Merger Agreement or the GM/Hughes Separation Agreement) that would require registration of any xx xxy shares of GM Class H Common Stock under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act") or under any state securities law or granted registration rights with respect to any shares of GM Class H Common Stock to any Person. (c) As of April 3September 30, 20032001, the numerator Numerator (as defined below) of the Class H Fraction was 1,107,518,293 876,948,420 and the denominator Denominator of the Class H Fraction was 1,381,891,6091,299,745,326, in each case as determined with respect to the quarterly accounting period ended on such date. As of the date of this Agreement, the aggregate outstanding shares of GM Series H Preference Stock were convertible, at the option of the holder, into 24.1935 shares of GM Class H Common Stock for each share of GM Series H Preference Stock, which number reflects all required adjustments as of such point date pursuant to the Certificate of Designations relating to the GM Series H Preference Stock (including adjustments to reflect the three-for-one stock split in time rather respect of GM Class H Common Stock effected pursuant to a 200 percent stock dividend paid on June 30, 2000 to holders of record of GM Class H Common Stock as of June 13, 2000). On June 24, 2002, if not previously converted, redeemed or otherwise canceled pursuant to the terms of the Certificate of Designations relating to the GM Series H Preference Stock, subject to adjustment pursuant to the terms of the Certificate of Designations relating to the GM Series H Preference Stock in effect on the date of this Agreement, each share of GM Series H Preference Stock will automatically convert into a certain number (between 24.1935 and 30.0) of shares of GM Class H Common Stock determined pursuant to the provisions of the Certificate of Designations relating to the GM Series H Preference Stock. Upon any such conversion, assuming that GM Class H Common Stock remains outstanding as of such time, the numerator (the "Numerator") of the Class H Fraction will be increased to reflect such number of shares of GM Class H Common Stock issued upon conversion and the Denominator of the Class H Fraction will be increased to reflect such number of shares of GM Class H Common Stock issued upon conversion. (d) All dividends paid on the GM Series H Preference Stock have been declared by the Board of Directors of GM for payment on, and have been paid on, each Preferential Dividend Payment Date (as defined in the Certificate of Designations relating to the GM Series H Preference Stock) and there exist no accrued and unpaid dividends on the GM Series H Preference Stock, other than as an average dividends which have accrued from or since the last Preferential Dividend Payment Date and which will be declared and paid on dates consistent with respect to any accounting periodpast practice.

Capitalization; Class H Fraction. (a) As of the date of this Agreement: , GM's authorized capital stock consists of 2,000,000,000 shares of GM $1-2/3 Common Stock; 3,600,000,000 shares of GM Class H Common Stock; 6,000,000 shares, no par value per share, of Preferred Stock ("GM Preferred Stock"); and 100,000,000 shares, $0.10 par value per share, of Preference Stock ("GM Preference Stock")) of which 2,669,633 shares are designated as GM Series H Preference Stock. As of April 7October 25, 2003: 1,107,518,293 2001, (i) 555,503,649 shares of GM $1-2/3 Common Stock were issued and outstanding, 200,795,732 shares of GM $1-2/3 Common Stock were held by GM as treasury shares, 336,512 shares of GM $1-2/3 Common Stock were reserved for issuance upon exercise of outstanding options and 27,093 shares of GM $1-2/3 Common Stock were issuable with respect to awards under the LTAP; (ii) 876,982,994 shares of GM Class H Common Stock were issued and outstanding, 1,444,030 81,564,668 shares of GM Class H Common Stock were held by GM as treasury shares, 92,888,852 84,535 shares of GM Class H Common Stock were reserved for issuance upon exercise of outstanding options, 1,928,644 1,048,325 shares of GM Class H Common Stock were issuable with respect to awards under the Xxxxxx Long Term Achievement Plan (the "LTAP") LTAP and 3,209,565 139,293 shares of GM Class H Common Stock were issuable with respect to restricted stock or restricted stock units; (iii) no shares of GM Preferred Stock were issued and outstanding; and (iv) 2,669,633 shares of GM Series H Preference Stock were issued and outstanding and no shares of GM Series H Preference Stock were held by GM as treasury shares. Each outstanding share of GM capital stock, including the GM Class H Common Stock and the GM Series H Preference Stock, is duly authorized and validly issued, fully paid and nonassessable and has not been issued in violation of any preemptive or similar rights. GM has no authorized or outstanding bonds, debentures, notes or other obligations or securities, the holders of which have the right to vote with the stockholders of GM on any matter. (b) Other than the GM Series H Preference Stock, any shares of GM Class H Common Stock to be issued pursuant to any GM Debt/Equity Exchange, as contemplated by the Merger Agreement or as set forth in Section 4.5(b2.5(b) of the disclosure schedule delivered by GM to EchoStar and dated as of the date of this Agreement (the "GM Disclosure Schedule"), there are no outstanding subscriptions, options, warrants, puts, calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale or transfer of any GM Class H Common Stock, nor are there outstanding any securities which are convertible into or exchangeable for any shares of GM Class H Common Stock and, except as expressly provided by the GM Transaction Agreements, GM has no obligation of any kind to issue any additional shares of GM Class H Common Stock or to pay for shares of GM Class H Common Stock. The issuance and sale of all of the shares of capital stock described in this Section 4.52.5, including the GM Class H Common Stock and the GM Series H Preference Stock, have been in compliance with federal and state securities laws. Section 4.5(b2.5(b) of the GM Disclosure Schedule accurately sets forth, as of the date indicated, forth the number of shares of GM Class H Common Stock issuable upon exercise of options to purchase shares of GM Class H Common Stock, and the exercise prices with respect thereto, along with a list of the options to purchase shares of GM Class H Common Stock held by each corporate officer of GM and Xxxxxx. Other than (i) the First Amended and Restated Registration Rights Agreement, dated as of March 12July 1, 20032000, by and among GM, U.S. United States Trust Company of New York ("U.S. Trust"), as Trustee of the GM Special Salaried Employees Pension Trust established under the GM Retirement Program for Salaried Employees (the "GM Salaried Pension Plan"), U.S. Trust, as Trustee of the GM Special Hourly Employees Pension Trust established under the GM Hourly-Hourly- Rate Employees Pension Plan (the "GM Hourly Pension Plan"), and U.S. Trust, as Trustee of the Sub-Trust of the GM Welfare Benefit Trust established under the GM Welfare Benefit Trust, a voluntary employees' beneficiary association trust established to fund certain collectively bargained hourly retiree health care benefits under the GM Health Care Program for Hourly Employees and certain collectively bargained hourly retiree life insurance benefits under the GM Life and Disability Benefits Program for Hourly Employees and such benefits under other applicable collectively bargained welfare plans (the "VEBA" andplans, together with the GM Salaried Pension Plan and the GM Hourly Pension Plan, the "GM Employee Benefit Plans") certain related agreements and arrangements relating thereto (collectively, the "Current GM Employee Benefit Pension Plans Registration Rights Agreement"), (ii) the Registration Rights Agreement, dated as of June 21, 1999, between GM and the First Amended America Online, Inc. ("AOL"), and Restated Transfer Agreement certain related agreements and arrangements relating thereto (collectively, the "GM Employee Benefit Plans Transfer AOL Registration Rights Agreement"), dated March 12, 2003, between GM and U.S. Trust, as trustee for the GM Salaried Pension Plan, the GM Hourly Pension Plan and the VEBA and all side letters and other agreements and arrangements related thereto and to the Current GM Employee Benefit Plans Registration Rights Agreement, and (iiiii) the Registration Rights Agreement, dated as of April 28, 1999, between GM and PRIMESTAR, Inc., and certain related agreements and arrangements relating thereto (collectively, the "PRIMESTAR Registration Rights Agreement")) and (iv) the Registration Rights Letter Agreement, neither GM nor any GM Affiliate (as defined below) has entered into or agreed to enter into any contract, agreement or understanding (other than such other contracts, agreements or understandings contemplated by this Agreement, the Merger Agreement or the GM/Xxxxxx Separation Agreement) that would require registration of any shares of GM Class H Common Stock under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act") or under any state securities law or granted registration rights with respect to any shares of GM Class H Common Stock to any Person. (c) As of April 3September 30, 20032001, the numerator Numerator (as defined below) of the Class H Fraction was 1,107,518,293 876,948,420 and the denominator Denominator of the Class H Fraction was 1,381,891,6091,299,745,326, in each case as determined with respect to the quarterly accounting period ended on such date. As of the date of this Agreement, the aggregate outstanding shares of GM Series H Preference Stock were convertible, at the option of the holder, into 24.1935 shares of GM Class H Common Stock for each share of GM Series H Preference Stock, which number reflects all required adjustments as of such point date pursuant to the Certificate of Designations relating to the GM Series H Preference Stock (including adjustments to reflect the three-for-one stock split in time rather respect of GM Class H Common Stock effected pursuant to a 200 percent stock dividend paid on June 30, 2000 to holders of record of GM Class H Common Stock as of June 13, 2000). On June 24, 2002, if not previously converted, redeemed or otherwise canceled pursuant to the terms of the Certificate of Designations relating to the GM Series H Preference Stock, subject to adjustment pursuant to the terms of the Certificate of Designations relating to the GM Series H Preference Stock in effect on the date of this Agreement, each share of GM Series H Preference Stock will automatically convert into a certain number (between 24.1935 and 30.0) of shares of GM Class H Common Stock determined pursuant to the provisions of the Certificate of Designations relating to the GM Series H Preference Stock. Upon any such conversion, assuming that GM Class H Common Stock remains outstanding as of such time, the numerator (the "Numerator") of the Class H Fraction will be increased to reflect such number of shares of GM Class H Common Stock issued upon conversion and the Denominator of the Class H Fraction will be increased to reflect such number of shares of GM Class H Common Stock issued upon conversion. (d) All dividends paid on the GM Series H Preference Stock have been declared by the Board of Directors of GM for payment on, and have been paid on, each Preferential Dividend Payment Date (as defined in the Certificate of Designations relating to the GM Series H Preference Stock) and there exist no accrued and unpaid dividends on the GM Series H Preference Stock, other than as an average dividends which have accrued from or since the last Preferential Dividend Payment Date and which will be declared and paid on dates consistent with respect to any accounting periodpast practice.