EXHIBIT 1
GENERAL MOTORS CORPORATION
FORM OF UNDERWRITING AGREEMENT
STANDARD PROVISIONS (CONVERTIBLE DEBT SECURITIES)
DATED FEBRUARY 28, 2002
From time to time, General Motors Corporation (the "Corporation"), a
Delaware corporation, may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters named
therein (the "Underwriters"). The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement," together with the provisions incorporated therein by reference, the
"Agreement"). Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. To the extent any terms herein
conflict with the terms therein, such Underwriting Agreement shall control.
I.
The Corporation proposes to issue from time to time convertible debt
securities (the "Securities") to be issued pursuant to the provisions of the
Indenture dated as of December 7, 1995 by and between the Corporation and
Citibank, N.A., as Trustee, as supplemented. The Securities will have varying
designations, maturities, conversion prices, rates and times of payment of
interest, if any, selling prices and redemption terms.
The Corporation has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with the Commission a prospectus supplement
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Act"). The term "Registration
Statement" means such registration statement as amended to the date of the
Underwriting Agreement, including any registration statement filed pursuant to
Rule 462(b) of the Act related to the Securities. The term "Basic Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the Securities, as filed electronically with the
Commission pursuant to Rule 424. The term "Preliminary Prospectus" means a
preliminary prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "Preliminary Prospectus" shall
include in each case the material, if any, incorporated by reference therein.
The term "Stock" means the security or securities issuable upon the
conversion of the Securities.
II.
On the basis of the representations and warranties contained in this
Agreement and subject to its terms and conditions, the Corporation may agree to
sell to the Underwriters additional Securities (the "Additional Securities")
whereby the Underwriters will have the right to purchase, severally and not
jointly, up to the maximum amount of Additional Securities at the purchase price
set forth in the Prospectus as amended or supplemented. The Manager may exercise
this right on behalf of the Underwriters in whole or from time to time in part
by giving written notice of each election to exercise the option not later than
30 days after the date of this Agreement. Any exercise notice shall specify the
number of Additional Securities to be purchased by the Underwriters and the date
on which such Securities are to be purchased. Each purchase date must be at
least three business days (unless a shorter period is agreed to by the
Corporation) after the written notice is given and may not be earlier than the
time and date for payment of the Securities (the "Closing Date") nor later than
ten business days after the date of such notice. Additional Securities may be
purchased as provided in Article IV hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Securities. On each
day that Additional Securities are to be purchased (an "Option Closing Date"),
if any, each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Securities (subject to such adjustments to eliminate
fractional securities as you may determine) that bears the same proportion to
the total number of Additional Securities to be purchased on such Option Closing
Date as the number of Securities set forth in the Underwriting Agreement
opposite the name of such Underwriter bears to the total number of Securities.
References herein to "Securities" include the "Additional Securities."
III.
The Corporation is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Securities as soon
after this Agreement is entered into as in the Manager's judgment is advisable.
The terms of the public offering of the Securities are set forth in the
Prospectus.
IV.
Payment for the Securities shall be made by wire transfer of Federal
(same-day) funds to the account specified by the Corporation to the Manager
prior to the Closing Date at the time and place set forth in the Underwriting
Agreement.
Payment for any Additional Securities shall be made by wire transfer of
Federal (same-day) funds to the account specified by the Corporation to the
Manager prior to the Option Closing Date at the time and place specified in the
corresponding notice described in Article II hereof or at such other time on the
same or on such other date as shall be designated in writing by the
Underwriters.
The Securities and the Additional Securities shall be registered in such
names and in such denominations as the Underwriters shall request in writing not
less than two full business days prior to the Closing Date or the applicable
Option Closing Date, as the case may be. The Securities and the Additional
Securities shall be delivered to you on the Closing Date or an Option Closing
Date, as the case may be, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer of
the Securities or the Additional Securities, as the case may be, to the
Underwriters duly paid, against payment of the purchase price therefor.
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall be in effect, no proceedings for such
purpose shall be pending before or threatened by the Commission, there
shall have been no material adverse change (not in the ordinary course
of business) or any development involving a prospective material
adverse change (not in the ordinary course of business) in the
condition of the Corporation and its subsidiaries, taken as a whole,
from that set forth in the Registration Statement and the Prospectus
and the representations and warranties of the Corporation in this
Agreement shall be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
(b) The Manager shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer, including without
limitation the Treasurer, of the Corporation (acting on behalf of the
Corporation and without personal liability), to the effect set forth in
paragraph (a) above. The officer making such certificate may rely upon the
best of such officer's knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an opinion of a member
of the Legal Staff of the Corporation dated the Closing Date, to the
effect set forth in Exhibit A-1, and an opinion of counsel to the
Corporation dated the Closing Date, to the effect set forth in Exhibit
A-2.
(d) The Manager shall have received on the Closing Date an opinion of tax
counsel of, and/or tax counsel to, the Corporation, dated the Closing
Date, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an opinion of counsel
for the Underwriters, dated the Closing Date, to the effect set forth in
Exhibit C.
(f) The Manager shall have received on each of the Pricing Date (as defined
below) and on the Closing Date a letter dated the Pricing Date or the
Closing Date, as the case may be, in form and substance reasonably
satisfactory to the Manager, from Deloitte & Touche LLP, independent
accountants, containing statements and information of the type
ordinarily included in the accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Registration Statement and the Prospectus.
(g) The Manager shall have received a "lock-up" agreement, each
substantially in the form of Exhibit D hereto, executed by each of the
senior executive officers of the Corporation identified in a schedule to
the Underwriting Agreement, relating to sales and certain other
dispositions of shares of $1-2/3 par value common stock or certain other
securities, which agreements shall be in full force and effect on the
Closing Date.
The several obligations of the Underwriters to purchase Additional
Securities hereunder are subject to the delivery to the Underwriters on the
applicable Option Closing Date of such documents as the Underwriters may
reasonably request with respect to the good standing of the Corporation, the due
authorization and issuance of the Additional Securities to be sold on such
Option Closing Date and other matters reasonably related to the issuance of such
Additional Securities.
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Corporation covenants as follows:
(a) To furnish the Manager a copy of the Registration Statement including
exhibits, if any, and, during the period mentioned in paragraph (c)
below, as many copies of the Prospectus and any supplements and
amendments thereto as the Manager may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement shall
include all documents filed by the Corporation with the Commission
subsequent to the date of the Prospectus, pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which are deemed
to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Securities, to furnish the Manager a copy
of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public offering of
the Securities (such first date, the "Pricing Date"), as in the opinion
of counsel for the Underwriters, the Prospectus is required by law to
be delivered, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare and furnish, at its own expense,
to the Underwriters, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with applicable law.
(d) To promptly advise the Manager of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose, and of
the receipt by the Corporation of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request.
(f) To make generally available to the Corporation's security holders as soon
as practicable an earnings statement covering a twelve month period
beginning after the date of the Underwriting Agreement, which shall
satisfy the provisions of Section 11(a) of the Act.
(g) Without the prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 90 days after the date
of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer
or dispose of, directly or indirectly, any shares of $1-2/3 par value
common stock or any securities convertible into or exercisable or
exchangeable for $1-2/3 par value common stock or (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the $1-2/3 par value common
stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of $1-2/3 par value common stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the Securities to be sold hereunder and any conversion thereof, (B) the
issuance of $1-2/3 par value common stock upon the exercise of options,
warrants or other rights exercisable for, or the conversion of securities
convertible into, $1-2/3 par value common stock outstanding as of the date
of the Prospectus; (C) the granting of stock options, warrants and/or
restricted or unrestricted stock awards for $1-2/3 par value common stock
under employee benefit, compensation or savings plans and programs of the
Corporation or any of its subsidiaries, provided that such options,
warrants and awards do not become exercisable or vest during such lock-up
period, except in accordance with the customary acceleration of vesting and
exercisability provisions of the Corporation contained in agreements under
such plans and programs; (D) issuances or transfers of $1-2/3 par value
common stock under or in connection with employee benefit, compensation or
savings plans and programs and dividend reinvestment plans of the
Corporation or any of its subsidiaries; (E) the issuance and/or transfer of
$1-2/3 par value common stock (or any securities convertible into or
exchangeable or exercisable for such common stock) pursuant to the terms of
any agreements in effect on the date of the Prospectus; (F) issuances of,
or transactions involving, any other securities of the Corporation,
including its Class H common stock, par value $0.10 per share; (G) the
issuance of shares of $1-2/3 par value common stock to persons who become
employed as officers of the Corporation during such lock-up period,
provided that those shares may not be sold or otherwise transferred by such
persons during such lock-up period; (H) public or private mergers,
acquisitions, strategic alliances, business combinations and other similar
transactions involving the issuance of any securities of the Corporation,
including $1-2/3 par value common stock (or any securities convertible into
or exchangeable or exercisable for such common stock), provided that the
recipients of such shares agree in writing not to offer or sell such shares
during such lock-up period; and (I) the issuance of shares of $1-2/3 par
value common stock to existing holders of such stock for purposes of
effecting a stock dividend or split.
VII.
The Corporation represents and warrants to each Underwriter that: (i)
each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed, or at the time of any amendment, in all material respects with the
Exchange Act and the rules and regulations thereunder, (ii) the Registration
Statement (including the documents incorporated by reference therein) filed with
the Commission pursuant to the Act relating to the Securities, when it became
effective, did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) each Preliminary Prospectus, if any,
filed pursuant to Rule 424 under the Act complied when so filed in all material
respects with the Act and the applicable rules and regulations thereunder, (iv)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and the applicable rules and regulations thereunder and (v) the Prospectus, as
of its date and on the Closing Date, do not and will not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that these representations and warranties do not
apply to statements or omissions in the Registration Statement, any Preliminary
Prospectus or the Prospectus based upon information furnished to the Corporation
in writing by or on behalf of any Underwriter expressly for use therein.
VIII.
The Corporation agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus or the Prospectus if used within the
period set forth in paragraph (c) of Article VI hereof and as amended or
supplemented (if the Corporation shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Corporation by or on behalf of any Underwriter expressly for use therein;
provided that the foregoing indemnity with respect to any Preliminary Prospectus
or Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Corporation shall have
furnished any amendments or supplements thereto), was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Securities
to such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities
unless such failure is the result of noncompliance by the Corporation with its
obligations under Article VI(c) hereof.
Each Underwriter severally agrees to indemnify and hold harmless the
Corporation and each of its directors and officers who sign the Registration
Statement and any person controlling the Corporation to the same extent as the
foregoing indemnity from the Corporation within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by or
on behalf of such Underwriter expressly for use in the Registration Statement,
any Preliminary Prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable and documented fees and disbursements of such counsel
related to such proceeding; provided, however, that in the event the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of any such proceeding, the indemnified party shall then be
entitled to retain counsel reasonably satisfactory to itself and the
indemnifying party shall pay the reasonable fees and disbursements of such
counsel related to the proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the reasonable fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed in writing to the retention of such counsel, (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
employ counsel satisfactory to the indemnified party pursuant to the first
preceding sentence. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to local counsel) for all such indemnified parties. Such firm shall
be designated in writing by the Manager in the case of parties indemnified
pursuant to the second preceding paragraph and by the Corporation in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is entitled to
indemnification unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in this Article VIII is unavailable to
an indemnified party under the second or third preceding paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Corporation on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Corporation on the one hand and the Underwriters on the other in connection with
respect to the offering of the Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Securities
(before deducting expenses) received by the Corporation bear to the total
underwriting discounts and commissions received by the Underwriters in respect
thereof. The relative fault of the Corporation on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Corporation or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Corporation and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amounts paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Article VIII, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten and distributed to the public
by such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VIII are several, in proportion to the respective
principal amounts of Securities purchased by each of such Underwriters, and not
joint.
The indemnity and contribution agreements contained in this Article VIII
and the representations and warranties of the Corporation in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Corporation its directors or officers or any person controlling
the Corporation and (iii) acceptance of any payment for any of the Securities.
IX.
The Manager, on behalf of the Underwriters, may terminate this Agreement
(upon consultation with the Corporation) at any time prior to the time on the
Closing Date at which payment would otherwise be due under this Agreement to the
Corporation, if (i) in the opinion of the Manager, there shall have been such a
change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls which in its view will have a
materially adverse effect on the success of the offering and distribution of or
a secondary market for the Securities or (ii) trading in securities generally on
the New York Stock Exchange shall have been suspended or materially limited. In
the event of any such termination and after consultation with the Corporation,
the parties to this Agreement shall be released and discharged from their
respective obligations under this Agreement without liability on the part of any
Underwriter or on the part of the Corporation and each party will pay its own
expenses.
X.
If this Agreement shall be terminated by the Underwriters or any of them,
because of any failure or refusal on the part of the Corporation to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Corporation shall be unable to perform its obligations under this
Agreement, the Corporation will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement, with respect to themselves, severally, for
all reasonable and documented out-of-pocket expenses (including the reasonable
and documented fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with the Securities.
This Agreement may be signed in any number of counterparts (including by
facsimile), each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
UNDERWRITING AGREEMENT
, 20__
GENERAL MOTORS CORPORATION
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
We (the "Underwriters") understand that General Motors Corporation, a
Delaware corporation (the "Corporation"), proposes to issue and sell $______
aggregate principal amount of ___% _______________ Due ________ __, 20__ (the
"Securities"). The Corporation also grants to the several Underwriters an option
to purchase not more than an additional $_____ aggregate principal amount of
___% _______________ Due ________ __, 20__ (the "Additional Securities") to
cover over-allotments. References herein to "Securities" include the "Additional
Securities." Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Corporation hereby agrees to sell and we
agree to purchase, severally and not jointly, the principal amounts of such
Securities set forth below opposite our names at ___% of their principal amount
plus accrued interest, if any, from ________ __, 20__ to the date of payment and
delivery (the "Closing Date"):
NAME OF UNDERWRITER PRINCIPAL AMOUNT
----------------------
----------------------
$
======================
The Underwriters will pay for such Securities upon delivery thereof at the
offices of _______________________________ at 10:00 A.M. (New York time) on
________ __, 20__, or at such other time, not later than ________ __, 20__, as
shall be designated by the Manager.
The Securities shall have the terms set forth in the Corporation's
Prospectus Supplement (the "Prospectus Supplement") dated ________ __, 20__
relating to the Securities and the Prospectus (the "Prospectus") dated ________
__, 20__, particularly as follows:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Conversion Price:
Other Principal Terms:
Listing:
Counsel for the Corporation:
Counsel for the Underwriters:
All the provisions contained in the document entitled General Motors
Corporation Underwriting Agreement Standard Provisions (Convertible Debt
Securities) dated February __, 2002, a copy of which we have previously
received, are herein incorporated by reference in their entirety and shall, be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein. The term "Manager" as used therein, for
purposes of this Agreement, means __________ [and __________, whose authority
hereunder may be exercised by them jointly or by __________ alone].
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below. This Agreement may be signed in
any number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument.
Very truly yours,
(Name of Underwriter)
On behalf of itself and the other
Underwriters named heretofore
By:
-------------------------------
Accepted:
General Motors Corporation
By:
---------------------------
Title:
---------------------------
EXHIBIT A-1
OPINION OF LEGAL STAFF OF THE CORPORATION
The opinion of a member of the Legal Staff of the Corporation, to be
delivered pursuant to Article V, paragraph (c) of the document entitled General
Motors Corporation Underwriting Agreement Standard Provisions (Convertible Debt
Securities) shall be to the effect that:
(i) the Corporation is validly existing as a corporation and in good
standing under the laws of the State of Delaware and is duly qualified
to transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership of its property
requires such qualification, except where the failure to be so
qualified or be in good standing, individually or in the aggregate,
would not have a material adverse effect on the Corporation and its
subsidiaries taken as a whole;
(ii) the Indenture has been duly authorized, executed and delivered by the
Corporation and is a valid and binding agreement of the Corporation and
has been duly qualified under the Trust Indenture Act of 1939;
(iii) the Securities, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters as contemplated by the Underwriting Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Corporation, assuming the due authorization, execution
and delivery by the Trustee of the Indenture and the due authentication
and delivery of the Securities by the Trustee in accordance with the
Indenture;
(iv) the authorized, issued and outstanding capital stock of the Corporation
conforms in all material respects as to legal matters to the description
thereof contained in the Prospectus;
(v) the Securities are convertible into Stock in accordance with the terms
of the Indenture, and the Stock initially issuable upon conversion of
the Securities has been duly authorized and reserved for issuance upon
such conversion and, when issued upon conversion in accordance with the
terms of the Indenture and when appropriate certificates representing
the Stock are duly countersigned by the transfer agent for the
Corporation's $1-2/3 par value common stock, will be validly issued, fully
paid and nonassessable and will conform in all material respects as to
legal matters to the description of the Stock contained in the
Prospectus, as amended or supplemented;
(vi) the Underwriting Agreement has been duly authorized, executed and
delivered by the Corporation;
(vii) no authorization, consent or approval of, or registration or filing with,
any governmental or public body or regulatory authority is required on the
part of the Corporation for the issuance of the Securities in accordance
with the Indenture and the sale of the Securities in accordance with the
Underwriting Agreement or the issuance of Stock initially issuable upon
conversion of the Securities, other than the registration of the
Securities or the Stock initially issuable upon conversion of the
Securities under the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, qualification of the
Indenture under the Trust Indenture Act of 1939, as amended, the listing
of the Securities and the Stock issuable upon conversion of the Securities
and compliance with any laws of any foreign jurisdiction or the securities
or Blue Sky laws of various jurisdictions;
(viii) the execution and delivery of the First Supplemental Indenture, the
issuance of the Securities in accordance with the Indenture, the sale of
the Securities pursuant to the Underwriting Agreement and the issuance of
Stock initially issuable upon conversion of the Securities, and compliance
by the Corporation with all of the provisions of the Securities, do not
and will not contravene any provision of applicable law (except that such
counsel need express no opinion in this paragraph as to compliance with
any disclosure requirement or any prohibition against fraud or
misrepresentation or as to whether performance of any indemnification or
contribution provisions would be permitted) or result in any violation by
the Corporation of any of the terms or provisions of the Certificate of
Incorporation or By-Laws of the Corporation or of any material indenture,
mortgage or other agreement or instrument known to such counsel, by which
the Corporation is bound (except that such counsel need express no opinion
as to compliance with any financial tests or cross-default provision in
any such agreement);
(ix) the statements in the Prospectus under "Description of Debt Securities,"
"Overview of Our Capital Stock," "Description of Common Stock" and in
"Item 3 - Legal Proceedings" of the Corporation's Annual Report on Form
10-K for the most recent fiscal year, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(x) counsel participated in the preparation of the Registration Statement
and the Prospectus. During the course of such preparation, such
counsel examined various documents, including those listed in counsel's
opinion, and participated in various conferences with representatives
of and counsel of the Corporation, and with representatives of the
independent accountants for the Corporation and representatives of and
counsel to the underwriters, at which conferences the contents of the
Registration Statement and the Prospectus (and the documents
incorporated therein by reference) were reviewed and discussed. Except
as set forth in paragraph (ix) above, such counsel makes no
representation that such counsel has independently verified the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or that the actions taken in
connection with the preparation of the Registration Statement or
Prospectus were sufficient to cause the Prospectus or Registration
Statement to be accurate, complete or fair. Based on such counsel's
participation in the conferences and discussions identified above, such
counsel's understanding of applicable law and the experience that such
counsel has gained in the practice thereunder and relying as to factual
matters to the extent deemed appropriate by such counsel upon the
representations and statements of officers and other representatives
of the Corporation, we advise you that no fact came to such counsel's
attention to cause such counsel to conclude that (i) each document, if
any, filed pursuant to the Securities Exchange Act of 1934 (except as
to financial statements contained therein, as to which such counsel
need not express any opinion) and incorporated by reference in the
Prospectus complied when so filed, or at the time of any amendment, as
to form in all material respects with such Act and the rules and
regulations thereunder, (ii) the Registration Statement, on its
effective date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) the
Prospectus, as of its date, or as of the date of this letter, contained
or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (iv) as of the effective date of the Registration
Statement, either the Registration Statement or the Prospectus appeared
on its face not to be responsive in all material respects to the
requirements of Form S-3, except for, in each case, financial
statements and schedules and other financial and statistical and
similar data and information included therein or incorporated by
reference therein or omitted therefrom, as to which such counsel
expresses no opinion.
With respect to clause (vii) above, such counsel may state that his
opinion is based upon the participation by one or more attorneys, who are
members of his staff and report to him, in the preparation of the Registration
Statement and the Prospectus and review and discussion of the contents thereof
and upon his general review and discussion of the answers made and information
furnished therein with such attorneys, certain officers of the Corporation and
its auditors, but is without independent check or verification except as stated
therein.
EXHIBIT A-2
OPINION OF COUNSEL TO THE CORPORATION
The opinion of counsel to the Corporation, to be delivered pursuant to
Article V, paragraph (c) of the document entitled General Motors Corporation
Underwriting Agreement Standard Provisions (Convertible Debt Securities) shall
be to the effect that:
(i) the authorized capital stock of the Corporation conforms in all
material respects as to legal matters to the description thereof
contained in the Prospectus;
(ii) the Securities are convertible into Stock in accordance with the terms of
the Indenture, and the Stock initially issuable upon conversion of the
Securities has been duly authorized and reserved for issuance upon such
conversion and, when issued upon conversion in accordance with the terms
of the Indenture and when appropriate certificates representing the Stock
are duly countersigned by the transfer agent for the Corporation's $1-2/3
par value common stock, will be validly issued, fully paid and
nonassessable and will conform in all material respects as to legal
matters to the description of the Stock contained in the Prospectus, as
amended or supplemented;
(iii) the Underwriting Agreement has been duly authorized, executed and
delivered by the Corporation;
(iv) the statements in the Prospectus under "Description of Debt Securities,"
"Overview of Our Capital Stock" and "Description of Common Stock", in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(v) counsel participated in the preparation of the Registration Statement
and the Prospectus. During the course of such preparation, such
counsel examined various documents, including those listed in counsel's
opinion, and participated in various conferences with representatives
of and counsel of the Corporation, and with representatives of the
independent accountants for the Corporation and representatives of and
counsel to the underwriters, at which conferences the contents of the
Registration Statement and the Prospectus (and the documents
incorporated therein by reference) were reviewed and discussed. Except
as set forth in paragraph (iv) above, such counsel makes no
representation that such counsel has independently verified the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or that the actions taken in
connection with the preparation of the Registration Statement or
Prospectus were sufficient to cause the Prospectus or Registration
Statement to be accurate, complete or fair. Based on such counsel's
participation in the conferences and discussions identified above, such
counsel's understanding of applicable law and the experience that such
counsel has gained in the practice thereunder and relying as to factual
matters to the extent deemed appropriate by such counsel upon the
representations and statements of officers and other representatives
of the Corporation, we advise you that no fact came to such counsel's
attention to cause such counsel to conclude that (i) the Registration
Statement, on its effective date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
(ii) the Prospectus, as of its date, or as of the date of this letter,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading or (iii) as of the effective date of the
Registration Statement, either the Registration Statement or the
Prospectus appeared on its face not to be responsive in all material
respects to the requirements of Form S-3, except for, in each case,
financial statements and schedules and other financial and statistical
and similar data and information included therein or incorporated by
reference therein or omitted therefrom, as to which such counsel
expresses no opinion.
EXHIBIT B
OPINION OF TAX COUNSEL OF, OR TAX COUNSEL TO, THE CORPORATION
The opinion of the Tax Counsel of, or tax counsel to, the Corporation, to
be delivered pursuant to Article V, paragraph (d) of the document entitled
General Motors Corporation Underwriting Agreement Standard Provisions
(Convertible Debt Securities) shall be to the effect that:
The discussion set forth under the caption "Certain United States
Federal Income Tax Consequences" in the Supplement is based upon
reasonable interpretations of existing law and fairly summarizes the
United States federal income tax considerations that are likely to be
material to a holder of the Debentures.
EXHIBIT C
OPINION OF COUNSEL FOR THE UNDERWRITERS
The opinion of counsel for the Underwriters, to be delivered pursuant to
Article V, paragraph (e) of the document entitled General Motors Corporation
Underwriting Agreement Standard Provisions (Convertible Debt Securities) shall
be to the effect that:
(i) the Indenture has been duly authorized, executed and delivered
by the Corporation and is a valid and binding agreement of the Corporation
and has been duly qualified under the Trust Indenture Act of 1939;
(ii) the Securities, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Underwriters will be valid and binding obligations of the Corporation;
(iii) the Securities are convertible into Stock in accordance with
the terms of the Indenture, and the Stock initially issuable upon
conversion of the Securities has been duly authorized and, when issued
upon such conversion, will be validly issued, fully paid and
nonassessable;
(iv) the Underwriting Agreement has been duly authorized,
executed and delivered by the Corporation;
(v) the statements in the Prospectus under "Description of Debt
Securities", "Overview of Our Capital Stock" (other than information as to
number of shares outstanding), "Description of Common Stock," "Plan of
Distribution" and "Underwriting," insofar as such statements constitute a
summary of the documents referred to therein, fairly present the
information called for with respect to such documents; and
(vi) such counsel (1) is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if applicable
(except as to financial statements contained therein, as to which such
counsel need not express an opinion), comply as to form in all material
respects with the Securities Act of 1933 and the rules and regulations
thereunder and (2) believes that (except for the financial statements and
financial and statistical data contained therein, as to which such counsel
need not express any belief) the Registration Statement and the Prospectus
as of the date of the Underwriting Agreement did not, and the Prospectus,
as amended or supplemented, if applicable, on the Closing Date does not,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein in the
light of the circumstances under which they were made, not misleading.
Such counsel may state that their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments and supplements thereto (other than the documents
incorporated by reference therein) and review and discussion of the contents
thereof, but is without independent check or verification except as specified.
EXHIBIT D
[FORM OF LOCK-UP AGREEMENT]
_____________ ___, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated propose to enter into an
Underwriting Agreement (the "Underwriting Agreement") with General Motors
Corporation, a Delaware corporation (the "Corporation"), providing for the
public offering (the "Public Offering") by the several Underwriters, including
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (the "Underwriters"), of $_____ principal amount of Series A
debentures (the "Series A debentures") and $_____ principal amount of Series B
debentures (the "Series B debentures" and together with the Series A debentures,
the "Securities") of the Corporation.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated on behalf of
the Underwriters, it will not, during the period commencing on the date hereof
and ending 90 days after the date of the final prospectus supplement relating to
the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of $1-2/3 par value
common stock or any securities convertible into or exercisable or exchangeable
for $1-2/3 par value common stock or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the $1-2/3 par value common stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
$1-2/3 par value common stock or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to transactions relating to shares of
$1-2/3 par value common stock or other securities acquired in open market
transactions after the completion of the Public Offering. Further, the
undersigned, together with the senior executive officers of the Corporation who
have executed similar lock-up agreements with the Underwriters, upon
consultation with the Corporation, may dispose of up to 500,000 shares in the
aggregate of $1-2/3 par value common stock without the consent of Xxxxxx Xxxxxxx
& Co. Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. In
addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of $1-2/3 par value common stock or any security
convertible into or exercisable or exchangeable for $1-2/3 par value common
stock.
The undersigned understands that the Corporation and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Corporation and the Underwriters.
Very truly yours,
-------------------------
(Name)
