Exhibit 12(d)(7)
AGREEMENT AND ACKNOWLEDGMENT
OF EXCHANGE OF SHARES AND
PLAN OF REORGANIZATION
AGREEMENT AND ACKNOWLEDGMENT OF EXCHANGE OF SHARES AND PLAN OF
REORGANIZATION, dated as of May 26, 2000 (this "Agreement"), between General
Motors Corporation, a Delaware corporation ("General Motors"), and Fleet
National Bank ("Fleet"), acting in its capacity as stock transfer agent and
registrar for General Motors and exchange agent in the Exchange Offer (as
defined below).
WHEREAS, General Motors on April 24, 2000 commenced an offer (the
"Exchange Offer") to holders of its Common Stock, $1 2/3 par value per share
("$1 2/3 Par Value Common Stock"), to exchange 1.065 shares of Class H Common
Stock, $0.10 par value per share ("Class H Common Stock"), of General Motors for
each share of $1 2/3 Par Value Common Stock (the "Exchange Ratio") validly
tendered in the Exchange Offer and accepted by GM, up to a maximum of 86,396,977
shares of $1 2/3 par value common stock to be accepted and 92,012,781 shares of
Class H common stock to be issued, upon the terms and subject to the conditions
set forth in the Offering Circular-Prospectus, dated April 24, 2000, relating to
the Exchange Offer, the related Letter of Transmittal and the instructions
thereto, and certain other relevant documents;
WHEREAS, the Exchange Offer is intended by General Motors to (i)
effect a readjustment of continuing interests in GM under a modified corporate
form and (ii) qualify as a reorganization under Section 368(a)(1)(E) of the
Internal Revenue Code of 1986, as amended (the "Code"), and this Agreement is
intended to constitute a plan of reorganization for purposes of Chapter 1,
Subchapter C of the Code;
WHEREAS, Fleet is the stock transfer agent and registrar for General
Motors and is also serving as the exchange agent for the Exchange Offer;
WHEREAS, the Exchange Offer expired as of 12:00 Midnight, New York
City Time on Friday, May 19, 2000;
WHEREAS, all of the conditions to the consummation of the Exchange
Offer described in the Offering Circular-Prospectus, dated April 24, 2000, have
been satisfied or waived by General Motors;
WHEREAS, 339,700,412 shares of $1 2/3 Par Value Common Stock were
validly tendered in the Exchange Offer, including 2,899,364 shares held by
eligible odd-lot stockholders, resulting in a proration factor, as determined by
Fleet, acting in its capacity as exchange agent in the Exchange Offer, in
accordance with the terms and conditions of the Exchange Offer, of 24.78958662%;
WHEREAS, General Motors intends to accept 86,396,977 shares of $1 2/3
Par Value Common Stock validly tendered in the Exchange Offer and, in accordance
with the terms of the Exchange Offer, General Motors intends to issue 92,012,781
shares of Class H Common Stock in exchange therefor; and
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as set forth below:
1. General Motors hereby notifies Fleet that it accepts the tenders of
86,396,977 shares of $1 2/3 Par Value Common Stock for exchange in the Exchange
Offer.
2. Fleet hereby agrees to deliver the 86,396,977 shares of $1 2/3 Par
Value Common Stock validly tendered in the Exchange Offer and accepted by
General Motors.
3. General Motors hereby issues to Fleet, as agent for the tendering
stockholders, and Fleet hereby acknowledges receipt from General Motors of the
92,012,781 shares of Class H Common Stock that corresponds, based on the
Exchange Ratio and taking into account proration, if any, to the number of
shares of $1 2/3 Par Value Common Stock accepted by General Motors in the
Exchange Offer.
4. In recognition of the foregoing, Fleet, acting in its capacity as
transfer agent and registrar for the Class H Common Stock, hereby agrees
promptly to credit such shares of Class H Common Stock to book-entry accounts
maintained by Fleet for the benefit of the tendering stockholders, subject to
the terms of the Exchange Offer relating to fractional shares, and, as soon as
reasonably practicable, to send such tendering stockholders an account statement
evidencing their holdings.
5. Fleet, acting as agent for holders of $1 2/3 Par Value Common Stock
otherwise entitled to receive fractional shares of Class H Common Stock as a
result of the Exchange Offer, hereby agrees to aggregate all fractional shares
and sell them for the accounts of those holders of $1 2/3 Par Value Common Stock
after the Exchange Offer. Fleet hereby agrees to distribute the proceeds from
such sales, net of commissions, to those holders of $1 2/3 Par Value Common
Stock on a pro rata basis.
6. The parties hereby agree to execute such other documents as may be
necessary or desirable to document and/or confirm the completion of the Exchange
Offer.
7. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE DOMESTIC LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE
OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.
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8. This Agreement may be executed in any number of counterparts, and by
each of the parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed an original, but all such
counterparts taken together, shall constitute one and the same instrument.
* * * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
GENERAL MOTORS CORPORATION
/s/ Xxxxxx X. Xxxxxxxx
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By: Xxxxxx X. Xxxxxxxx
Its: Assistant Secretary
FLEET NATIONAL BANK, as Transfer Agent and
Registrar for General Motors, including for
the $1 2/3 Par Value Common Stock and the
Class H Common Stock, and as Exchange Agent
for the Exchange Offer
/s/ Xxxxxx X. XxXxxxx
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By: Xxxxxx X. XxXxxxx
Its: Managing Director
