sv3asr
As filed with the Securities and Exchange Commission on
September 4, 2008
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
General Motors
Corporation
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction
of
incorporation or organization)
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38-0572515
(I.R.S. Employer
Identification No.)
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300 Renaissance Center
Detroit, Michigan
48265-3000
(313) 556-5000
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Nicholas S. Cyprus
Chief Accounting
Officer
General Motors
Corporation
300 Renaissance Center
Detroit, Michigan
48265-3000
(313) 556-5000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
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Martin I. Darvick, Esq.
General Motors Corporation
300 Renaissance Center
Detroit, Michigan
48265-3000
(313) 556-5000
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Joseph P. Gromacki, Esq.
Jenner & Block LLP
330 N. Wabash Avenue
Chicago, Illinois 60611
(312) 222-9350
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Richard A. Drucker, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
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Large
accelerated
filer þ
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller reporting
company o
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(Do
not check if a smaller reporting company)
CALCULATION OF REGISTRATION
FEE
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Amount to be Registered/Proposed Maximum Offering
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Title of Each Class of
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Price per Unit/Proposed Maximum Aggregate Offering
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Securities to be Registered
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Price/Amount of Registration Fee(1)
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Debt Securities of GM
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Common Stock (par value
$12/3
per share) of GM
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Preferred Stock (without par value) of GM
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Preference Stock (par value $0.10 per share) of GM
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Warrants of GM
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(1)
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An indeterminate aggregate initial
offering price and number or amount of the securities of each
identified class is being registered as may from time to time be
sold at indeterminate prices. Separate consideration may or may
not be received for securities that are issuable upon conversion
of, or in exchange for, or upon exercise of, convertible or
exchangeable securities. Registration fees of $809,000 for up to
$10 billion net aggregate principal amount of securities
were paid previously by the Registrant in connection with the
Registration Statement on
Form S-3
(File
No. 333-108532)
originally filed by the Registrant on September 5, 2003.
Pursuant to Rule 457(p) under the Securities Act of 1933,
the fees of $629,402 with respect to $7,780,000,000 aggregate
initial offering price of securities that were previously
registered and not sold are being carried forward, and such
unsold securities are deregistered hereby. In accordance with
Rules 456(b) and 457(r), the Registrant is deferring payment of
all of the registration fee except that portion previously paid
and which is being carried forward.
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PROSPECTUS
GENERAL MOTORS
CORPORATION
Debt Securities
Common Stock (par value
$12/3)
Preferred Stock (without par
value)
Preference Stock (par value
$0.10)
Warrants
We may offer from time to time debt securities, common stock,
preferred stock, preference stock or warrants pursuant to this
prospectus. We will provide specific terms of these securities
in supplements to this prospectus. You should read this
prospectus and any supplement carefully before you invest.
Our common stock is listed in the United States on the New York
Stock Exchange under the symbol GM.
We may sell the securities offered by this prospectus on a
continuous or delayed basis directly, through agents, dealers or
underwriters or through direct sales or auctions performed by
utilizing the internet or a bidding or ordering system as
designated from time to time by us, or through any combination
of these methods. If any agents, dealers or underwriters are
involved in the sale of any securities offered by this
prospectus, the applicable prospectus supplement will set forth
any applicable commissions or discounts between or among them.
Our net proceeds from the sale of securities also will be set
forth in the applicable prospectus supplement.
Investment in any securities offered by this prospectus
involves risk. See Risk Factors beginning on
page 4 of this prospectus, in our periodic reports filed
from time to time with the Securities and Exchange Commission
and in the applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
September 4, 2008
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, referred to
as the SEC in this prospectus, utilizing a shelf
registration process. Under this shelf process, we may sell any
combination of our securities, as described in this prospectus,
from time to time and in one or more offerings. This prospectus
provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this
prospectus. You should read both this prospectus and any
prospectus supplement and any free writing prospectus prepared
by or on behalf of us together with additional information
described below under Incorporation of Certain Documents
By Reference.
You should rely only on the information contained in or
incorporated by reference into this prospectus or any
accompanying prospectus supplement or any free writing
prospectus prepared by or on behalf of us. We have
not authorized anyone to provide you with different
information or make any additional representations. We are not
making an offer of these securities in any state or other
jurisdiction where the offer is not permitted. You should
not assume that the information contained in or
incorporated by reference into this prospectus or any prospectus
supplement or any free writing prospectus prepared by or on
behalf of us is accurate as of any date other than the date on
the front of each of such documents. The terms General
Motors, GM, we, us,
the Corporation and our refer to General
Motors Corporation.
PRINCIPAL
EXECUTIVE OFFICES
Our principal executive offices are located at 300 Renaissance
Center, Detroit, Michigan
48265-3000,
and our telephone number is
(313) 556-5000.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any
document that we file at the Public Reference Room of the SEC at
100 F Street, N.E., Washington, D.C. 20549. You
may obtain information on the operation of the Public Reference
Room by calling the SEC at
1-800-SEC-0330.
In addition, the SEC maintains an internet site at www.sec.gov
that contains reports, proxy statements and other information
regarding registrants that file electronically, including GM. We
are not incorporating the contents of the SEC website into this
prospectus.
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the
information that we file with them, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed
below and any future filings made with the SEC by us under
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities (other
than filings or portions of filings that are furnished under
applicable SEC rules rather than filed):
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GM SEC Filings (File No. 1-143)
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Period
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Annual Report on
Form 10-K
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Year ended December 31, 2007 filed with the SEC on
February 28, 2008
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Definitive Proxy Statement
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Date filed: April 25, 2008
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Quarterly Reports on
Form 10-Q
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Quarter ended March 31, 2008 filed with the SEC on
May 8, 2008 and quarter ended June 30, 2008 filed with
the SEC on August 7, 2008
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Current Reports on
Form 8-K
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Dates filed: January 3, 2008, January 4, 2008,
January 23, 2008, February 1, 2008, February 12,
2008 (only the report that is deemed filed with the
SEC), February 25, 2008, March 5, 2008 (only the
report that is deemed filed with the SEC),
March 6, 2008, April 1, 2008, April 23, 2008,
May 1, 2008, May 13, 2008, May 23, 2008,
June 3, 2008 (2), June 9, 2008, July 1, 2008 and
July 23, 2008
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The description of the common stock set forth in
Article Fourth of our Certificate of Incorporation filed as
Exhibit 3(i) to our Annual Report on
Form 10-K
for the year ended December 31, 2003 filed on March 11,
2004
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You may request a copy of the documents incorporated by
reference into this prospectus, except exhibits to such
documents unless those exhibits are specifically incorporated by
reference in such documents, at no cost, by writing or
telephoning the office of Nicholas S. Cyprus, Controller and
Chief Accounting Officer, at the following address and telephone
number:
General Motors Corporation
300 Renaissance Center
Detroit, Michigan
48265-3000
(313) 556-5000
You may also find additional information about us, including the
documents mentioned above, on our website at
http://www.gm.com.
The information included on or linked to this website or any
website referred to in any document incorporated by reference
into this prospectus is not a part of this prospectus.
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DESCRIPTION
OF GENERAL MOTORS CORPORATION
We are engaged primarily in the worldwide development,
production and marketing of cars, trucks and parts. We develop,
manufacture and market vehicles worldwide through our four
automotive regions: GM North America, GM Europe, GM Latin
America/Africa/Mid-East and GM Asia Pacific. Also, our finance
and insurance operations are primarily conducted through GMAC
LLC, the successor to General Motors Acceptance Corporation.
GMAC was a wholly owned subsidiary until November 30, 2006,
when we sold a 51% controlling ownership interest in GMAC to a
consortium of investors. Since the GMAC transaction, we have
accounted for our 49% ownership interest in GMAC using the
equity method. GMAC provides a broad range of financial
services, including consumer vehicle financing, automotive
dealership and other commercial financing, residential mortgage
services, automobile service contracts, personal automobile
insurance coverage and selected commercial insurance coverage.
Substantially all of our cars, trucks and parts are marketed
through retail dealers in North America, and through
distributors and dealers outside of North America, the
substantial majority of which are independently owned. We
primarily meet the demands of customers in North America with
vehicles developed, manufactured
and/or
marketed under the following brands:
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Chevrolet
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Buick
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Saab
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GMC
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Pontiac
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Cadillac
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HUMMER
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Saturn
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The demands of customers outside North America are primarily met
with vehicles developed, manufactured
and/or
marketed under the following brands:
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Opel
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Saab
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GMC
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HUMMER
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Vauxhall
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Buick
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Cadillac
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Isuzu
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Holden
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Chevrolet
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Daewoo
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Suzuki
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As of July 31, 2008, we also had equity ownership stakes
directly or indirectly through various regional subsidiaries,
including GM Daewoo Auto & Technology Company, New
United Motor Manufacturing, Inc., Shanghai General Motors Co.,
Ltd., SAIC-GM-Wuling Automobile Company Ltd. and CAMI Automotive
Inc. These companies design, manufacture and market vehicles
under the following brands:
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Pontiac
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Wuling
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Chevrolet
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Buick
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Suzuki
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Daewoo
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Cadillac
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Holden
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In addition to the products we sell to our dealers for consumer
retail sales, we also sell cars and trucks to fleet customers,
including daily rental car companies, commercial fleet
customers, leasing companies and governments. Sales to fleet
customers are completed through our network of dealers and in
some cases directly by us.
Our retail and fleet customers can obtain a wide range of
aftersale vehicle services and products through our dealer
network, such as maintenance, light repairs, collision repairs,
vehicle accessories and extended service warranties.
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RISK
FACTORS
Investment in any securities offered pursuant to this prospectus
involves risks. You should carefully consider the risk factors
incorporated by reference to our most recent Annual Report on
Form 10-K
and our subsequent Quarterly Reports on
Form 10-Q
and the other information contained in this prospectus, as
updated by our subsequent filings under the Securities Exchange
Act of 1934, as amended, and the risk factors and other
information contained in the applicable prospectus supplement
before acquiring any of such securities.
FORWARD-LOOKING
STATEMENTS
This prospectus and any accompanying prospectus supplement may
include or incorporate by reference forward-looking
statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the Securities
Act), and Section 21E of the Securities and Exchange
Act of 1934, as amended (the Exchange Act). Our use
of the words may, will,
would, could, should,
believes, estimates,
projects, potential,
expects, plans, seeks,
intends, evaluates, pursues,
anticipates, continues,
designs, impacts, forecasts,
target, outlook, initiative,
objective, designed,
priorities, goal or the negative of
those words or other similar expressions is intended to identify
forward-looking statements that represent our current judgment
about possible future events. All statements in this prospectus
and any accompanying prospectus supplement, and in related
comments by our management, other than statements of historical
facts, including without limitation, statements about future
events or financial performance, are forward-looking statements
that involve certain risks and uncertainties.
These statements are based on certain assumptions and analyses
made in light of our experience and perception of historical
trends, current conditions and expected future developments as
well as other factors that we believe are appropriate in the
circumstances. While these statements represent our current
judgment on what the future may hold, and we believe these
judgments are reasonable, these statements are not guarantees of
any events or financial results. Whether actual future results
and developments will conform with our expectations and
predictions is subject to a number of risks and uncertainties,
including the risks and uncertainties discussed in the documents
referred to under the caption Risk Factors, in
documents incorporated by reference into this prospectus and in
any applicable prospectus supplement, and other factors, many of
which are beyond our control.
Consequently, all of the forward-looking statements made in this
prospectus and any prospectus supplement are qualified by these
cautionary statements and there can be no assurance that the
actual results or developments that we anticipate will be
realized or, even if realized, that they will have the expected
consequences to or effects on us and our subsidiaries or our
businesses or operations. We caution investors not to place
undue reliance on forward-looking statements. We undertake no
obligation to update publicly or otherwise revise any
forward-looking statements, whether as a result of new
information, future events, or other such factors that affect
the subject of these statements, except where we are expressly
required to do so by law.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table presents the ratio of our earnings to fixed
charges for the periods indicated:
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Six Months Ended June 30,
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Years Ended December 31,
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2008
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2007
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2006
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2005
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2004
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2003
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1.06
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1.26
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Earnings for the six months ended June 30, 2008 and the
twelve months ended December 31, 2007, 2006 and 2005 were
inadequate to cover fixed charges. Additional earnings of
$17.8 billion for the six months ended June 30, 2008
and $5.5 billion for 2007, $5.3 billion for 2006 and
$16.5 billion for 2005 would have been necessary to bring
the respective ratios to 1.0.
We compute the ratio of earnings to fixed charges by dividing
earnings before income taxes and fixed charges by the fixed
charges. This ratio includes the earnings and fixed charges of
us and our consolidated subsidiaries. Fixed charges consist of
interest and discount accretion and the portion of rentals for
real and personal properties in an amount deemed to be
representative of the interest factor.
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USE OF
PROCEEDS
Unless otherwise specified in the prospectus supplement, we will
add the net cash proceeds from the sale by us of any securities
to our general funds and they will be available for general
corporate purposes, including capital expenditures, working
capital and the repayment of existing indebtedness.
OVERVIEW
OF OUR CAPITAL STOCK
The following description of our capital stock is based upon our
restated certificate of incorporation, as amended
(Certificate of Incorporation), our bylaws, as
amended (Bylaws), and applicable provisions of law.
We have summarized certain portions of our Certificate of
Incorporation and Bylaws below. The summary is not complete. Our
Certificate of Incorporation and Bylaws have been filed as
exhibits to the registration statement of which this prospectus
is a part and are incorporated by reference into this
prospectus. You should read our Certificate of Incorporation and
Bylaws for the provisions that are important to you.
Certain provisions of the Delaware General Corporation Law
(DGCL), our Certificate of Incorporation and our
Bylaws summarized in the following paragraphs may have an
anti-takeover effect. This may delay, defer or prevent a tender
offer or takeover attempt that a stockholder might consider in
its best interests, including those attempts that might result
in a premium over the market price for its shares.
Authorized
Capital Stock
Our Certificate of Incorporation authorizes us to issue
2,106,000,000 shares of capital stock, consisting of:
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6,000,000 shares of preferred stock, without par value;
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100,000,000 shares of preference stock, $0.10 par
value; and
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2,000,000,000 shares of common stock,
$12/3
par value.
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As of July 31, 2008:
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566,162,606 shares of common stock were
outstanding; and
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No shares of preferred stock or preference stock were
outstanding.
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Certain
Provisions of Our Certificate of Incorporation and
Bylaws
Amendments to Our Certificate of
Incorporation. Under the DGCL, the affirmative
vote of a majority of the outstanding shares entitled to vote
and a majority of the outstanding stock of each class entitled
to vote is required to amend a corporations certificate of
incorporation. Under the DGCL, the holders of the outstanding
shares of a class of our capital stock shall be entitled to vote
as a class upon a proposed amendment, whether or not entitled to
vote thereon by the certificate of incorporation, if the
amendment would:
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increase or decrease the aggregate number of authorized shares
of such class;
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increase or decrease the par value of the shares of such
class; or
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alter or change the powers, preferences or special rights of the
shares of such class so as to affect them adversely.
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If any proposed amendment would alter or change the powers,
preferences or special rights of one or more series of any class
of our capital stock so as to affect them adversely, but shall
not so affect the entire class, then only the shares of the
series so affected by the amendment shall be considered a
separate class for the purposes of this provision.
Vacancies in the Board of Directors. Our
Bylaws provide that any vacancy occurring in our board of
directors for any cause may be filled by a majority of the
remaining members of our board, although such majority is less
than a quorum.
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Special Meetings of Stockholders. Under our
Bylaws, only our board of directors or the chairman of our board
may call special meetings of stockholders at such place, date
and time and for such purpose or purposes as shall be set forth
in the notice of such meeting.
Requirements for Notice of Stockholder Director Nominations
and Stockholder Business. If a stockholder wishes
to bring any business before an annual or special meeting or
nominate a person for election to our board of directors, our
Bylaws contain certain procedures that must be followed in terms
of the advance timing required for delivery of stockholder
notice of such business and the information that such notice
must contain. The information required in a stockholder notice
includes general information regarding the stockholder, a
description of the proposed business and, with respect to
nominations for the board of directors, certain specified
information regarding the nominee(s).
In addition to the information required in a stockholder notice
described above, our Bylaws require a representation that the
stockholder is a holder of our voting stock and intends to
appear in person or by proxy at the meeting to make the
nomination or bring up the matter specified in the notice. In
terms of the timing of the stockholder notice, our Bylaws
require that the notice must be received by our secretary:
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in the case of an annual meeting, not more than 180 days
and not less than 120 days in advance of the annual
meeting; and
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in the case of a special meeting, not later than the fifteenth
day following the day on which notice of the meeting is first
mailed to stockholders.
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Certain
Anti-Takeover Effects of Delaware Law
We are subject to Section 203 of the DGCL
(Section 203). In general, Section 203
prohibits a publicly held Delaware corporation from engaging in
various business combination transactions with any
interested stockholder for a period of three years following the
date of the transaction(s) in which the person became an
interested stockholder, unless:
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the transaction is approved by the board of directors prior to
the date the interested stockholder obtained such status;
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upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction
commenced; or
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on or subsequent to such date the business combination is
approved by the board and authorized at an annual or special
meeting of stockholders by the affirmative vote of at least
662/3%
of the outstanding voting stock which is not owned by the
interested stockholder.
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A business combination is defined to include
mergers, asset sales, and other transactions resulting in
financial benefit to an interested stockholder. In
general, an interested stockholder is a person who,
together with affiliates and associates, owns (or is an
affiliate or associate of the corporation and, within the prior
three years, did own) 15% or more of a corporations voting
stock. The statute could prohibit or delay mergers or other
takeover or change in control attempts with respect to us and,
accordingly, may discourage attempts to acquire us even though
such a transaction may offer our stockholders the opportunity to
sell their stock at a price above the prevailing market price.
DESCRIPTION
OF COMMON STOCK
Our only class of common stock is our common stock,
$12/3
par value.
In addition to the following description of our common stock,
please refer to our Certificate of Incorporation which sets
forth in full detail the terms of our common stock. Our
Certificate of Incorporation has been filed as an exhibit to the
registration statement of which this prospectus is a part and is
incorporated by reference into this prospectus. For information
regarding how you can obtain a copy of our Certificate of
Incorporation, see Where You Can Find More
Information.
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There are no redemption or sinking fund provisions applicable to
our common stock. All outstanding shares of common stock are
fully paid and non-assessable, and any shares of common stock to
be issued upon completion of this offering will be fully paid
and non-assessable.
Dividends
The DGCL and our Certificate of Incorporation do not require our
board of directors to declare dividends on our common stock. The
declaration of any dividend on our common stock is a matter to
be acted upon by our board of directors in its sole discretion.
Our board of directors reserves the right to reconsider from
time to time its policies and practices regarding dividends on
our common stock and to increase or decrease the dividends paid
on our common stock or not pay a dividend at all. Our board of
directors may reconsider such matters on the basis of, among
other things, our consolidated financial position, which
includes liquidity and other factors.
Both the DGCL and our Certificate of Incorporation restrict the
power of our board of directors to declare and pay dividends on
our common stock. The amounts which may be declared and paid by
our board of directors as dividends on our common stock are
subject to the amount legally available for the payment of
dividends by us under the DGCL. In particular, under the DGCL,
we can only pay dividends to the extent that we have
surplus the extent by which the fair market value of
our net assets exceeds the amount of our capital or
the extent of our net profits for the then current
and/or the
preceding fiscal year. In addition, dividends on our common
stock are subject to any preferential rights on any outstanding
series of preferred stock or preference stock created by our
board of directors in accordance with our Certificate of
Incorporation. Further if dividends have been declared but not
paid on any outstanding shares of our preferred stock, our
Certificate of Incorporation provides that dividends may not be
paid on or set apart for the common stock until all declared but
unpaid dividends on any outstanding shares of our preferred
stock have been paid. Also, our Certificate of Incorporation
provides that dividends may not be declared on our common stock
until a sum sufficient for the payment of the next ensuing
quarterly dividend of any preferred stock outstanding has been
set aside from the surplus or net profits.
Any dividends declared or paid on our common stock from time to
time will reduce the amount available for future payments of
dividends. The amount available for dividends on each class will
also depend upon any adjustments to our capital or surplus due
to repurchases or issuances of shares of our common stock. In
addition, the DGCL permits our board of directors to adjust for
any reason it deems appropriate the amounts of capital and
surplus within certain parameters and therefore the amount
available for dividends.
Voting
Rights
Our Certificate of Incorporation entitles holders of common
stock to one vote per share on all matters submitted to our
stockholders for a vote.
Liquidation
Rights
In the event of the liquidation, dissolution or winding up of
our business, whether voluntary or involuntary, our Certificate
of Incorporation provides that, after the holders of any
outstanding shares of our preferred stock and preference stock
receive their full preferential amounts, holders of common stock
will receive the assets remaining for distribution to our
stockholders ratably on a per share basis.
Stock
Exchange Listing
Our common stock is listed in the United States on the New York
Stock Exchange under the ticker symbol GM.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is
Computershare Trust Company, N.A., a federally chartered
trust institution doing business at P.O. Box 43078,
Providence, Rhode Island
02940-3078.
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Direct
Registration System
Our common stock is registered in book-entry form through the
direct registration system. Under this system, unless a common
stockholder requests a physical stock certificate, ownership of
our common stock is reflected in account statements periodically
distributed to common stockholders by Computershare, our
transfer agent, who holds the book-entry shares on behalf of our
common stockholders. However, currently, any common stockholder
who wishes to receive a physical stock certificate evidencing
his or her shares may at any time obtain a stock certificate at
no charge by contacting our transfer agent.
DESCRIPTION
OF PREFERRED STOCK
This prospectus describes certain general terms and provisions
of our preferred stock. When we offer to sell a particular
series of preferred stock, we will describe the specific terms
of the securities in a prospectus supplement. The prospectus
supplement will also indicate whether the general terms and
provisions described in this prospectus apply to the particular
series of preferred stock. The preferred stock will be issued
under a certificate of designations relating to each series of
preferred stock and is also subject to our Certificate of
Incorporation.
Under our Certificate of Incorporation, our board of directors
has the authority to issue shares of preferred stock from time
to time in distinctly designated series, with each series
ranking equally and identical in all respects except as to the
dividend rate and redemption price.
Terms of
a Particular Series
The prospectus supplement will describe the terms of any
preferred stock being offered, including:
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the number of shares and designation or title of the shares;
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any liquidation preference per share;
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any date of maturity;
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any redemption, repayment or sinking fund provisions;
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any dividend rate or rates and the dates of payment (or the
method for determining the dividend rates or dates of payment);
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if other than the currency of the United States, the currency or
currencies including composite currencies in which the preferred
stock is denominated
and/or in
which payments will or may be payable;
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whether the preferred stock is convertible or exchangeable and,
if so, the securities or rights into which the preferred stock
is convertible or exchangeable (which could include any
securities issued by us or any third party, including any
of our affiliates), and the terms and conditions of conversion
or exchange;
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the place or places where dividends and other payments on the
preferred stock will be payable; and
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any additional dividend, liquidation, redemption and other
rights, preferences, privileges, limitations and restrictions.
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All shares of preferred stock offered will be fully paid and
non-assessable.
Dividends
Holders of preferred stock would be entitled to receive
quarterly cumulative dividends when and as declared by the board
of directors at the rates fixed for the respective series in the
resolution or certificate of designation for the respective
series. In addition, if any preferred stock were issued, it
would rank senior to our preference stock and our common stock
with respect to the payment of dividends.
8
Voting
If any shares of our preferred stock were issued, holders of
such shares would not be entitled to vote except that they would
vote upon the question of disposing of our assets as an entirety
and except as otherwise required by the DGCL.
Liquidation
Any shares of preferred stock that are issued will have priority
over the preference stock and our common stock with respect to
liquidation rights.
Transfer
Agent and Registrar
The transfer agent for each series of preferred stock will be
described in the prospectus supplement.
DESCRIPTION
OF PREFERENCE STOCK
This prospectus describes certain general terms and provisions
of our preference stock. When we offer to sell a particular
series of preference stock, we will describe the specific terms
of the securities in a prospectus supplement. The prospectus
supplement will also indicate whether the general terms and
provisions described in this prospectus apply to the particular
series of preference stock. The preference stock will be issued
under a certificate of designations relating to each series of
preference stock and is also subject to our Certificate of
Incorporation.
Under our Certificate of Incorporation, our board of directors
has the authority to issue shares of preference stock from time
to time in distinctly designated series up to the maximum number
of shares of preference stock authorized, with the terms of each
series fixed by our board in the resolutions providing for the
issuance of such series.
Terms of
a Particular Series
The prospectus supplement will describe the terms of any
preference stock being offered, including:
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the number of shares and designation or title of the shares;
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any liquidation preference per share;
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any date of maturity;
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any redemption, repayment or sinking fund provisions;
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any dividend (which may be cumulative or non-cumulative) rate or
rates and the dates of payment (or the method for determining
the dividend rates or dates of payment);
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any voting rights;
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if other than the currency of the United States, the currency or
currencies including composite currencies in which the preferred
stock is denominated
and/or in
which payments will or may be payable;
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whether the preference stock is convertible or exchangeable and,
if so, the securities into which the preference stock is
convertible or exchangeable (which could include any securities
issued by us or any third party, including any of our
affiliates), and the terms and conditions of conversion or
exchange;
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the place or places where dividends and other payments on the
preference stock will be payable; and
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any additional voting, dividend, liquidation, redemption and
other rights, preferences, privileges, limitations and
restrictions.
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All shares of preference stock offered will be fully paid and
non-assessable.
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Dividends
If any preference stock were issued, it would rank junior to our
preferred stock, if any, and it could rank senior to our common
stock with respect to the payment of dividends.
Liquidation
If any preference stock were issued, it would rank junior to our
preferred stock, if any, and it could rank senior to our common
stock with respect to liquidation rights.
Transfer
Agent and Registrar
The transfer agent for each series of preference stock will be
described in the prospectus supplement.
Miscellaneous
Our board of directors has the authority to create and issue a
series of preference stock with rights, privileges or
restrictions which effectively discriminates against an existing
or prospective holder of preference stock as a result of the
holder beneficially owning or commencing a tender offer for a
substantial amount of common stock. One of the effects of
authorized but unissued and unreserved shares of capital stock
may be to make it more difficult or discourage an attempt by a
potential acquirer to obtain control of us by means of a merger,
tender offer, proxy contest or otherwise. This protects the
continuity of our management. The issuance of these shares of
capital stock may defer or prevent a change in control in us
without any further stockholder action.
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general terms and provisions
of the debt securities. The debt securities will constitute
either senior or subordinated debt. We will issue debt
securities that will be senior debt under the indenture dated
January 8, 2008 (the senior indenture) between
us and The Bank of New York Mellon (formerly known as The Bank
of New York), as senior debt trustee. We will issue debt
securities that will be subordinated debt under the subordinated
indenture dated as of January 8, 2008 (the
subordinated indenture) between us and The Bank of
New York Mellon, as subordinated debt trustee. This prospectus
refers to the senior indenture and the subordinated indenture
individually as the indenture and collectively as
the indentures. This prospectus refers to the senior
debt trustee and the subordinated debt trustee individually as
the trustee and collectively as the
trustees. When we offer to sell a particular series
of debt securities, we will describe the specific terms of the
securities in a prospectus supplement. The prospectus supplement
will also indicate whether the general terms and provisions
described in this prospectus apply to a particular series of
debt securities.
We have summarized certain terms and provisions of the
indentures. The summaries are subject to the terms of the senior
indenture and the subordinated indenture, respectively, which
are incorporated herein by reference. You should read the
indentures for the provisions which may be important to you. The
indentures are subject to and governed by the
Trust Indenture Act of 1939, as amended.
Neither indenture limits the amount of debt securities which we
may issue. We may issue debt securities up to an aggregate
principal amount as we may authorize from time to time.
Terms of
a Particular Offering
The prospectus supplement will describe the terms of any debt
securities being offered, including:
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classification as senior or subordinated debt securities;
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the designation of the debt securities;
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the aggregate principal amount of the debt securities;
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the percentage of their principal amount at which the debt
securities will be issued;
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if the debt securities are subordinated, the aggregate amount of
outstanding indebtedness, as of a recent date, that is senior to
the subordinated securities, and any limitation on the issuance
of additional senior indebtedness;
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the date or dates on which the debt securities will mature;
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the rate or rates per annum, if any, at which the debt
securities will bear interest;
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the times at which the interest will be payable;
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whether the debt securities are convertible or exchangeable and,
if so, the securities or rights into which the debt securities
are convertible or exchangeable (which could include any
securities issued by us or any third party, including any of our
affiliates), and the terms and conditions of conversion or
exchange;
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the date after which or other circumstances in which the debt
securities may be redeemed and the redemption price or any
prepayment or sinking fund provisions;
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if other than denominations of $1,000 or multiples of $1,000,
the denominations the debt securities will be issued in;
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the currency or currencies in which the debt securities are
issuable or payable;
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the exchanges on which the debt securities may be listed;
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whether the debt securities shall be issued in book-entry
form; and
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any other specific terms, including events of default or
covenants.
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Principal and interest, if any, will be payable, and, unless the
debt securities are issued in book-entry form, the debt
securities being offered will be transferable, at the principal
corporate trust office of the trustees, which at the date hereof
is 101 Barclay Street, Floor 8 West, New York, New York
10286, Attention: The Bank of New York Mellon, provided that
payment of interest may be made at our option by check mailed to
the address of the person entitled thereto.
Some of the debt securities may be issued as discounted debt
securities, bearing no interest or interest at a rate, which at
the time of issuance, is below market rates, to be sold at a
substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations
applicable to any such discounted debt securities will be
described in a prospectus supplement.
Debt securities will include debt securities denominated in
United States dollars or, at our option if so specified in a
prospectus supplement, in any other currency.
If a prospectus supplement specifies that debt securities are
denominated in a currency other than United States dollars, the
prospectus supplement will also specify the denomination in
which such debt securities will be issued and the coin or
currency in which the principal, premium, if any, and interest
on the debt securities, where applicable, will be payable, which
may be United States dollars based upon the exchange rate for
such other currency existing on or about the time a payment is
due.
If a prospectus supplement specifies that the debt securities
will have a redemption option, our election to exercise such an
option may constitute an issuer tender offer under the Exchange
Act. If such redemption constitutes a tender offer, we will
comply with all issuer tender offer rules and regulations under
the Exchange Act, including
Rule 14e-1.
We will make any required filings with the SEC and furnish
certain information to the holders of the debt securities.
Senior
Debt
Any debt securities we issue under the senior indenture will
constitute part of our senior debt. These senior debt securities
will rank equally and pari passu with all of our other
unsecured and unsubordinated debt (other than obligations
preferred by mandatory provisions of law).
11
Subordinated
Debt
Any debt securities we issue under the subordinated indenture
will constitute part of our subordinated debt. These
subordinated debt securities will be subordinate and junior in
right of payment, to the extent and in the manner set forth in
the subordinated indenture, to all of our senior
indebtedness. The subordinated indenture defines
senior indebtedness as obligations of, or guaranteed
or assumed by, us for borrowed money or leased property in
capitalized lease or sale and leaseback transactions, or
evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications
and refundings of any such indebtedness or obligations.
Senior indebtedness does not include nonrecourse
obligations, the subordinated debt securities or any other
obligations specifically designated as being subordinate in
right of payment to senior indebtedness. See the Subordinated
Indenture, Section 13.
In general, the holders of all senior indebtedness are first
entitled to receive payment of the full amount unpaid on senior
indebtedness before the holders of any of the subordinated debt
securities or coupons are entitled to receive a payment on
account of the principal or interest on the indebtedness
evidenced by the subordinated debt securities in certain events.
These events include:
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any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings which
concern us or a substantial part of our property;
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a default having occurred for the payment of principal, premium,
if any, or interest on or other monetary amounts due and payable
on any senior indebtedness or any other default having occurred
concerning any senior indebtedness, which permits the holder or
holders of any senior indebtedness to accelerate the maturity of
any senior indebtedness with notice or lapse of time, or both.
Such an event of default must have continued beyond the period
of grace, if any, provided for such event of default, and such
an event of default shall not have been cured or waived or shall
not have ceased to exist;
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the principal of, and accrued interest on, any series of the
subordinated debt securities having been declared due and
payable upon an event of default pursuant to section 6 of
the subordinated indenture; this declaration must not have been
rescinded and annulled as provided in the subordinated
indenture; or
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any different or additional events described in a prospectus
supplement.
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If this prospectus is being delivered in connection with a
series of subordinated debt securities, the accompanying
prospectus supplement or the information incorporated in this
prospectus by reference will set forth the approximate amount of
senior indebtedness outstanding as of the end of the most recent
fiscal quarter.
If the trustee under the subordinated indenture or any holders
of the subordinated debt securities receive any payment or
distribution that is prohibited under the subordination
provisions, then the trustee or the holders will have to repay
that money to the holders of the senior indebtedness.
Even if the subordination provisions prevent us from making any
payment when due on the subordinated debt securities of any
series, we will be in default on our obligations under that
series if we do not make the payment when due. This means that
the trustee under the subordinated indenture and the holders of
debt securities of that series can take action against us, but
they will not receive any money until the claims of the holders
of senior indebtedness have been fully satisfied.
Defeasance
If the terms of a particular series of debt securities so
provide, we may, at our option, (a) discharge our
indebtedness and our obligations under the applicable indenture
with respect to such series or (b) not comply with certain
covenants contained in the applicable indenture with respect to
such series, in each case by depositing funds or obligations
issued or guaranteed by the United States of America with the
trustee sufficient to pay and discharge the entire indebtedness
of all outstanding debt securities of such series. Such
defeasance is subject to other conditions including receipt of a
tax opinion to the effect that the holders of the debt
securities will not recognize income, gain or loss for United
States Federal income tax purposes as a result of such
defeasance and will be subject to United States Federal income
tax on the same amounts and in the same manner and at the same
times as would have been the case if such defeasance had not
occurred.
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Consolidation,
Merger or Sale of Assets
The indentures provide that we will not merge or consolidate
with another corporation or other entity or sell or convey all
or substantially all of our assets unless either we are the
continuing corporation or the new corporation or other entity
shall expressly assume the interest and principal due under the
debt securities. In either case, the indentures provide that
neither we nor a successor corporation or other entity may be in
default of performance immediately after a merger or
consolidation. Additionally, the indentures provide that in the
case of any such merger or consolidation, either we or the
successor corporation or other entity may continue to issue
securities under the indentures.
Modification
of the Indentures
The indentures contain provisions permitting us and the
applicable trustee to modify or amend such indenture or any
supplemental indenture or the rights of the holders of the debt
securities issued thereunder, with the consent of the holders of
not less than a majority in aggregate principal amount of the
debt securities of all series at the time outstanding under
either such indenture which are affected by such modification or
amendment, voting as one class, provided that, without the
consent of the holder of each debt security so affected, no such
modification shall:
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change the fixed maturity of any debt securities, or reduce the
principal amount thereof, or premium, if any, or reduce the rate
or extend the time of payment of interest thereon, or reduce the
amount due and payable upon acceleration of the maturity thereof
or the amount provable in bankruptcy, or make the principal of,
or premium, if any, or interest, on any debt securities payable
in any currency other than so provided in such debt
securities; or
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in the case of debt securities that are convertible, change in
any manner adverse to the holders, the amounts payable upon the
redemption of the debt securities, the date, if any, on which
the holders have the right to require us to repurchase the debt
securities, or the transactions or events upon which the holders
have the right to require us to repurchase the debt securities
or the amounts payable upon the repurchase, or the circumstances
under which the holders have the right to convert the debt
securities or the amounts receivable upon conversion thereof
(but excluding any adjustment to the conversion rate);
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impair the right to institute suit for the enforcement of any
such payment on or after the stated maturity thereof (or, in the
case of redemption, on or after the redemption date
thereof); or
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reduce the aforesaid percentage of debt securities, the consent
of the holders of which is required for any such modification.
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The indentures contain provisions permitting us and the
applicable trustee to enter into indentures supplemental to the
indenture, without the consent of the holders of the debt
securities at the time outstanding, for one or more of the
following purposes:
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to evidence the succession of another corporation or other
entity to us, or successive successions, and the assumption by
any successor corporation or other entity of certain covenants,
agreements and obligations;
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to add to our covenants such further covenants, restrictions,
conditions or provisions as our board of directors and the
trustee shall consider to be for the protection of the holders
of securities of any or all series, or the coupons appertaining
to such securities;
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to permit or facilitate the issuance of securities of any series
in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, and to provide for
exchangeability of such securities with securities issued
thereunder in fully registered form and to permit or facilitate
the issuance of uncertificated securities of any series;
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to cure any ambiguity or mistake contained therein or in any
supplemental indenture or in any debt security; or to correct or
supplement any provision contained therein or in any
supplemental indenture or in any debt security which may be
defective or inconsistent with any other provision contained
therein or in any supplemental indenture or in any debt
security; or to make such other provisions in regard to matters
or
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questions arising under the indenture as shall not adversely
affect the interests of the holders of any series of debt
securities or any coupons appertaining to such debt securities;
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to convey, transfer, assign, mortgage or pledge any property to
or with the trustee;
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to evidence and provide for the acceptance and appointment of a
successor trustee;
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to establish the form or terms of securities of any series as
permitted by the indenture;
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to change or eliminate any provision of the indenture, provided
that any such change or elimination (i) shall become
effective only when there is no security outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision or
(ii) shall not apply to any security outstanding; and
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to add or change any of the provisions of the indentures with
respect to any securities that by their terms may be converted
into any securities of any person, in order to permit or
facilitate the issuance, payment or conversion of such
securities.
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Further
Issues
We may from time to time, without notice to or the consent of
the registered holders of any series of debt securities, create
and issue further debt securities ranking pari passu with
such debt securities in all respects, or in all respects except
for the payment of interest accruing prior to the issue date of
such further debt securities or except for the first payment of
interest following the issue date of such further debt
securities. Such further debt securities may be consolidated and
form a single series with the debt securities and have the same
terms as to status, redemption or otherwise as the debt
securities.
Concerning
our Relationships with the Trustees
The Bank of New York Mellon (formerly known as The Bank of New
York) is the trustee under both the senior indenture and the
subordinated indenture. It is also the trustee under various
other indentures covering our outstanding notes and debentures.
The Bank of New York Mellon acts as trustee and performs certain
other services for certain of our affiliates and us in the
normal course of its business.
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of debt securities,
equity securities or securities of third parties (including any
of our affiliates) or other rights to receive payment in cash or
securities based on the value, rate or price of one or more
specified securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us
and a bank or trust company, as warrant agent.
A prospectus supplement will set forth the terms of any warrants
to be issued and a description of the material provisions of the
applicable warrant agreement, including:
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the title and the aggregate number of warrants;
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the price or prices at which the warrants will be issued;
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the currency or currencies in which the price of the warrants
will be payable;
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the securities or other rights, including rights to receive
payment in cash or securities based on the value, rate or price
of one or more specified securities purchasable upon exercise of
the warrants;
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the price at which, and the currency or currencies in which, the
securities or other rights purchasable upon exercise of such
warrants may be purchased;
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the periods during which, and places at which, the warrants are
exercisable;
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the date or dates on which the warrants shall commence and the
date or dates on which the warrants will expire;
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the terms of any mandatory or optional call provisions;
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the price or prices, if any, at which the warrants may be
redeemed at the option of the holder or will be redeemed upon
expiration;
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if applicable, the designation and terms of the securities with
which the warrants are issued and the number of warrants issued
with each such security;
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if applicable, the date on and after which the warrants and the
related securities will be separately transferable;
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any provisions for the adjustment of the number or amount of
securities receivable upon exercise of warrants;
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the identity of the warrant agent;
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the exchanges, if any, on which the warrants may be listed;
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the maximum or minimum number of warrants which may be exercised
at any time;
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if applicable, a discussion of any material United States
Federal income tax considerations;
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whether the warrants shall be issued in book-entry form; and
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any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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We will issue warrants under one or more warrant agreements to
be entered into between us and a bank or trust company, as
warrant agent, in one or more series, which will be described in
a prospectus supplement for the warrants.
FORMS OF
SECURITIES
Unless otherwise indicated in a prospectus supplement, the debt
securities and warrants will be issued in the form of one or
more fully registered global securities (a Global
Security), which will be deposited with, or on behalf of,
The Depository Trust Company, New York, New York (the
Depository or DTC) and registered in the
name of the Depositorys nominee. Beneficial interests in a
Global Security will be represented through book-entry accounts
of financial institutions acting on behalf of beneficial owners
as direct and indirect participants of the Depository. Investors
may elect to hold interests in the Global Securities through
DTC. Except as set forth below, a Global Security may be
transferred, in whole and not in part, only to another nominee
of the Depository or to a successor of the Depository or its
nominee.
The Depository has advised us that it is a limited-purpose trust
company which was created to hold securities for its
participating organizations and to facilitate the clearance and
settlement of securities transactions between participants in
such securities through electronic book-entry changes in
accounts of its participants. Participants include:
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securities brokers and dealers, including the underwriters named
in the accompanying prospectus supplement;
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banks and trust companies;
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clearing corporations; and
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certain other organizations.
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Access to the Depositorys system is also available to
others such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a
participant, either directly or indirectly. Persons who are not
participants may beneficially own securities held by the
Depository only through participants or indirect participants.
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The Depository advises that pursuant to procedures established
by it:
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upon issuance of a Global Security, the Depository will credit
the account of participants designated by any dealers,
underwriters or agents participating in the distribution of the
securities with the respective principal or face amounts of
securities beneficially owned by such participants; and
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ownership of beneficial interests in a Global Security will be
shown on, and the transfer of that ownership will be effected
only through, records maintained by the Depository (with respect
to participants interests), the participants and the
indirect participants (with respect to the owners of beneficial
interests in the Global Security).
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The laws of some states require that certain persons take
physical delivery in definitive form of securities which they
own. Consequently, the ability to own, transfer or pledge
beneficial interests in a Global Security is limited to such
extent.
As long as the Depositorys nominee is the registered owner
of a Global Security, such nominee for all purposes will be
considered the sole owner or holder of the securities
represented by the Global Security. Except as provided below,
you will not:
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be entitled to have any of the securities registered in your
name;
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receive or be entitled to receive physical delivery of the
securities in definitive form; or
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be considered the owners or holders of the securities under the
applicable indenture or warrant agreement.
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Principal, premium, if any, and interest payments on debt
securities, and any payments to holders with respect to
warrants, represented by a Global Security registered in the
name of a Depository or its nominee will be made to the
Depository or its nominee, as the case may be, as the registered
owner of the Global Security. Neither we, the trustees, warrant
agent, paying agent or any other agent for payment on or
registration of transfer or exchange of any Global Security nor
the Depository will have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests in Global Securities or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
If the Depository is at any time unwilling or unable to continue
as depositary and we have not appointed a successor depositary
within 90 days, we will issue securities in definitive form
in exchange for the Global Securities. In addition, we may at
any time determine not to have the securities represented by
Global Securities and, in such event, will issue securities in
definitive form in exchange for the Global Securities. In either
instance, an owner of a beneficial interest in a Global Security
will be entitled to have securities equal in principal amount to
the beneficial interest registered in its name and will be
entitled to physical delivery of the securities in definitive
form. No service charge will be made for any transfer or
exchange of the securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
PLAN OF
DISTRIBUTION
We may offer from time to time debt securities, common stock,
preference stock, preferred stock and warrants. Some of these
securities may, pursuant to their terms, be mandatorily
convertible into or mandatorily exchangeable for securities
issued or to be issued by us or any third party, including any
of our affiliates.
We may distribute the securities from time to time in one or
more transactions at:
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a fixed price or prices, which may be changed;
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market prices prevailing at the time of sale;
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prices related to the prevailing market prices; or
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negotiated prices.
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16
A prospectus supplement will set forth the terms of the offering
of the securities described in this prospectus, including:
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the name or names of any underwriters, dealers or agents and the
amounts of securities underwritten or purchased by each of them;
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the offering price of the securities and the proceeds to us and
any discounts, commissions or concessions allowed or reallowed
or paid to dealers; and
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any securities exchanges on which the securities may be listed.
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Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be
changed from time to time.
We may sell the securities for cash, or in exchange for
satisfaction of our outstanding liabilities to certain of our
creditors, in any of the following ways (or in any combination
thereof):
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directly to purchasers;
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through agents, underwriters or dealers; and
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through direct sales or auctions performed by utilizing the
internet or a bidding or ordering system.
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Direct
Sales
We may directly solicit offers to purchase securities. In this
case, no underwriters or agents would be involved.
Through
Agents, Underwriters or Dealers
We may use agents to sell the securities. Any such agent, who
may be deemed to be an underwriter as that term is defined in
the Securities Act of 1933, involved in the offer or sale of the
securities in respect of which this prospectus is delivered will
be named, and any commissions payable by us to such agent will
be set forth, in a prospectus supplement. Unless otherwise
indicated in a prospectus supplement, any such agent will be
acting on a best efforts basis for the period of its
appointment, which is ordinarily three business days or less.
If an underwriter or underwriters are utilized in the sale of
securities, we will enter into an underwriting agreement or
exchange agreement, as applicable, with such underwriters at the
time of sale to them and the names of the underwriters and the
terms of the transaction will be set forth in a prospectus
supplement which will be used by the underwriters to make
resales of the securities in respect of which this prospectus is
delivered to the public.
If underwriters are used in the sale of any securities, the
securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the
time of sale. The securities may be either offered to the public
through underwriting syndicates represented by managing
underwriters or directly by underwriters. Generally, the
underwriters obligations to purchase the securities will
be subject to certain conditions precedent. The underwriters
will be obligated to purchase all of the securities if they
purchase any of the securities.
If a dealer is utilized in the sale of securities in respect of
which this prospectus is delivered, we will sell such securities
to the dealer as principal. The dealer may then resell such
securities to the public at varying prices to be determined by
such dealer at the time of resale.
We will provide in the applicable prospectus supplement any
compensation we pay to underwriters, dealers or agents in
connection with the offering of the securities, and any
discounts, concessions or commissions allowed by underwriters to
participating dealers. Underwriters, dealers and agents
participating in the distribution of the securities may be
deemed to be underwriters within the meaning of the Securities
Act and any discounts and commissions received by them and any
profit realized by them on resale of the debt securities may be
deemed to be underwriting discounts and commissions. We may
enter into agreements to indemnify underwriters, dealers and
agents against civil liabilities, including liabilities under
the Securities Act, or to contribute to payments they may be
required to make in respect thereof.
17
Through
the Internet or Bidding or Ordering System
We may also offer securities directly to the public, with or
without the involvement of agents, underwriters or dealers and
may utilize the internet or another electronic bidding or
ordering system for the pricing and allocation of such
securities. Such a system may allow bidders to directly
participate, through electronic access to an auction site, by
submitting conditional offers to buy that are subject to
acceptance by us, and which may directly affect the price or
other terms at which such securities are sold.
The final offering price at which securities would be sold and
the allocation of securities among bidders, would be based in
whole or in part on the results of the internet bidding process
or auction. Many variations of the internet auction or pricing
and allocating systems are likely to be developed in the future,
and we may utilize such systems in connection with the sale of
securities. We will describe in a supplement to this prospectus
how any auction or bidding process will be conducted to
determine the price or any other terms of the securities, how
potential investors may participate in the process and, where
applicable, the nature of the underwriters obligations
with respect to the auction or ordering system.
Derivatives
and Hedging Transactions
We may enter into derivative or hedging transactions with
financial institutions as to our own securities. These financial
institutions may in turn engage in sales of common stock to
hedge their position, deliver this prospectus in connection with
some or all of those sales and use the shares covered by this
prospectus to close out any short position created in connection
with those sales. We may also sell shares of common stock short
using this prospectus and deliver common stock covered by this
prospectus to close out such short positions, or loan or pledge
common stock to financial institutions that in turn may sell the
shares of common stock using this prospectus. We may pledge or
grant a security interest in some or all of the common stock
covered by this prospectus to support a derivative or hedging
position or other obligation and, if we default in the
performance of our obligations, the pledgees or secured parties
may offer and sell the common stock from time to time pursuant
to this prospectus.
General
Information
The place and time of delivery for the securities described in
this prospectus will be set forth in the accompanying prospectus
supplement.
Underwriters, dealers and agents may engage in transactions
with, or perform services for, us in the ordinary course of
business.
In connection with the sale of the securities, certain of the
underwriters may engage in transactions that stabilize, maintain
or otherwise affect the price of the securities. Specifically,
the underwriters may overallot the offering, creating a short
position. In addition, the underwriters may bid for, and
purchase, the securities in the open market to cover short
positions or to stabilize the price of the securities. Any of
these activities may stabilize or maintain the market price of
the securities above independent market levels. The underwriters
will not be required to engage in these activities, and may end
any of these activities at any time.
LEGAL
MATTERS
The validity of the securities in respect of which this
prospectus is being delivered will be passed on for us by Martin
I. Darvick, Esq., an attorney on our legal staff. Certain
other matters related to the securities in respect of which this
prospectus is being delivered will be passed upon for us by
Jenner & Block LLP and for the underwriters by Davis
Polk & Wardwell. Mr. Darvick owns shares and
holds options to purchase shares of our common stock. Davis
Polk & Wardwell acts as counsel to the Executive
Compensation Committee of our board of directors and has acted
as counsel to us and certain of our affiliates in various
matters.
18
EXPERTS
The consolidated financial statements and financial statement
schedule of General Motors Corporation (the Corporation)
incorporated in this Prospectus by reference from the
Corporations Annual Report on
Form 10-K
for the year ended December 31, 2007, and the effectiveness
of the Corporations internal control over financial
reporting, have been audited by Deloitte & Touche LLP,
an independent registered public accounting firm, as stated in
their reports, which are incorporated herein by reference (which
reports (1) express an unqualified opinion on the
consolidated financial statements and financial statement
schedule and include explanatory paragraphs relating to
(a) the recognition and measurement of uncertain tax
positions; the change in measurement date for defined benefit
plan assets and liabilities; the recognition of the funded
status of the Corporations defined benefit plans; and the
accounting for the estimated fair value of conditional asset
retirement obligations, and (b) the sale of a controlling
interest in GMAC LLC; and (2) express an adverse opinion on
the effectiveness of the Corporations internal control
over financial reporting because of material weaknesses). Such
financial statements and financial statement schedule have been
so incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
The consolidated financial statements of GMAC LLC incorporated
in this Prospectus by reference from the General Motors
Corporation Annual Report on
Form 10-K
for the year ended December 31, 2007 have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their report, which is
incorporated herein by reference. Such financial statements have
been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
19
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The following is a statement of the estimated expenses (other
than underwriting compensation) to be incurred by us in
connection with an offering of an assumed amount of
$1,000,000,000 of securities registered under this registration
statement. The assumed amount has been used to demonstrate the
expenses of an offering and does not represent an estimate of
the amount of securities that may be registered or offered
because such amount is unknown at this time.
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SEC registration fee
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$
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39,300
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Printing
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30,000
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Legal fees and expenses
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500,000
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Trustee fees
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25,000
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Accounting fees and expenses
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150,000
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Miscellaneous
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5,700
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Total
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$
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750,000
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Item 15.
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Indemnification
of Directors and Officers
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Under Section 145 of the Delaware Corporation Law, General
Motors is empowered to indemnify its directors and officers as
provided therein.
General Motors Certificate of Incorporation, as amended,
provides that no director shall be personally liable to General
Motors or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for
any breach of the directors duty of loyalty to General
Motors or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174, or
any successor provision thereto, of the Delaware Corporation
Law, or (iv) for any transaction from which the director
derived an improper personal benefit.
Under Article V of its Bylaws, General Motors shall
indemnify and advance expenses to every director and officer
(and to such persons heirs, executors, administrators or
other legal representatives) in the manner and to the full
extent permitted by applicable law as it presently exists, or
may hereafter be amended, against any and all amounts (including
judgments, fines, payments in settlement, attorneys fees
and other expenses) reasonably incurred by or on behalf of such
person in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (a proceeding), in
which such director or officer was or is made or is threatened
to be made a party or is otherwise involved by reason of the
fact that such person is or was a director or officer of General
Motors, or is or was serving at the request of General Motors as
a director, officer, employee, fiduciary or member of any other
corporation, partnership, joint venture, trust, organization or
other enterprise. General Motors shall not be required to
indemnify a person in connection with a proceeding initiated by
such person if the proceeding was not authorized by the board of
directors of General Motors. General Motors shall pay the
expenses of directors and officers incurred in defending any
proceeding in advance of its final disposition
(advancement of expenses); provided, however, that
the payment of expenses incurred by a director or officer in
advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the director or officer
to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be
indemnified under Article V of the Bylaws or otherwise. If
a claim for indemnification or advancement of expenses by an
officer or director under Article V of the Bylaws is not
paid in full within ninety days after a written claim therefor
has been received by General Motors, the claimant may file suit
to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action, General Motors shall
have the burden of proving that the claimant was not entitled to
the requested indemnification or advancement of expenses under
applicable law. The rights conferred on any person by
Article V of the Bylaws shall not be exclusive of any other
rights which such person may have or hereafter acquire under any
statute, provision of General Motors Certificate of
Incorporation or Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
II-1
General Motors is insured against liabilities which it may incur
by reason of Article V of its Bylaws. In addition,
directors and officers are insured, at General Motors
expense, against some liabilities which might arise out of their
employment and not be subject to indemnification under
Article V of the Bylaws.
Pursuant to a resolution adopted by General Motors board
of directors on December 1, 1975, General Motors, to the
fullest extent permissible under law, will indemnify, and has
purchased insurance on behalf of, its directors or officers and
subsidiaries, or any of them, who incur or are threatened with
personal liability, including expenses, under the Employee
Retirement Income Security Act of 1974, as amended, or any
amendatory or comparable legislation or regulation thereunder.
A list of exhibits filed with this registration statement on
Form S-3
is set forth on the Exhibit Index and is incorporated
herein by reference.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate
offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i), (ii) and
(iii) do not apply if the registration statement is on
Form S-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement;
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) to remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering;
(4) that, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B) each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by Section
10(a) of the Securities Act of 1933 shall be deemed to be part
of and included in the registration statement as of the earlier
of the date
II-2
such form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the offering
described in prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which the prospectus
relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; and
(5) that, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
(iii) the portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of an undersigned Registrant; and
(iv) any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of Registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) If any securities registered under this registration
statement are to be offered to existing security holders
pursuant to warrants or rights and any securities not taken by
security holders are to be reoffered to the public, the
undersigned registrant hereby undertakes to supplement the
prospectus, after the expiration of the subscription period, to
set forth the results of the subscription offer, the
transactions by the underwriters during the subscription period,
the amount of unsubscribed securities to be purchased by the
underwriters, and the terms of any subsequent reoffering
thereof. If any public offering by the underwriters is to be
made on terms differing from those set forth on the cover page
of the prospectus, a post-effective amendment will be filed to
set forth the terms of such offering.
(d) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above,
or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, General
Motors Corporation certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement on
Form S-3
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Detroit, State of Michigan, on
September 4, 2008.
General Motors Corporation
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By:
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/s/ G.
RICHARD WAGONER, JR.
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G. Richard Wagoner, Jr.
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ G.
RICHARD WAGONER, JR.
G.
Richard Wagoner, Jr.
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Chairman of the Board and Chief Executive Officer (Principal
Executive Officer)
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September 4, 2008
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/s/ RAY
G. YOUNG
Ray
G. Young
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Executive Vice President and Chief Financial Officer (Principal
Financial Officer)
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September 4, 2008
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/s/ NICK
S. CYPRUS
Nick
S. Cyprus
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Controller and Chief Accounting Officer (Principal Accounting
Officer)
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September 4, 2008
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*
Percy
N. Barnevik
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Director
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September 4, 2008
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*
Erskine
B. Bowles
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Director
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September 4, 2008
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*
John
H. Bryan
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Director
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September 4, 2008
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*
Armando
M. Codina
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Director
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September 4, 2008
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*
Erroll
B. Davis, Jr.
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Director
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September 4, 2008
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*
George
M.C. Fisher
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Director
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September 4, 2008
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*
Karen
Katen
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Director
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September 4, 2008
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II-4
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Signature
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Title
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Date
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*
Kent
Kresa
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Director
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September 4, 2008
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*
Ellen
J. Kullman
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Director
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September 4, 2008
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*
Philip
A. Laskawy
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Director
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September 4, 2008
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*
Kathryn
V. Marinello
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Director
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September 4, 2008
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*
Eckhard
Pfeiffer
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Director
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September 4, 2008
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* |
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The undersigned, by signing his name hereto, does execute this
Registration Statement on behalf of the persons identified above
pursuant to a power of attorney. |
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By:
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/s/ CHRISTOPHER
T. HATTO
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Christopher T. Hatto
Attorney-in-Fact
II-5
EXHIBIT INDEX
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Exhibit
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No.
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Description
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1
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(a)
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Form of Proposed Underwriting Agreement of GM Relating to Debt
Securities, incorporated by reference to Exhibit 1(a) to
General Motors Corporations Current Report on
Form 8-K
filed May 24, 2007
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1
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(b)
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Form of Proposed Underwriting Agreement of GM Relating to
Convertible Debt Securities, incorporated by reference to
Exhibit 1(b) to General Motors Corporations Current
Report on
Form 8-K
filed May 24, 2007
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1
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(c)
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Form of Proposed Underwriting Agreement of GM Relating to Common
Stock, Preferred Stock, Preference Stock and Warrants*
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4
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(a)
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Indenture, by and between General Motors Corporation and The
Bank of New York Mellon (formerly known as The Bank of New
York), as trustee, dated as of January 8, 2008,
incorporated by reference to Exhibit 10.3 to General Motors
Corporations Current Report on
Form 8-K
filed February 25, 2008
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4
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(b)
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Subordinated Indenture, by and between General Motors
Corporation and The Bank of New York Mellon (formerly known as
The Bank of New York), as trustee, dated as of January 8,
2008, incorporated by reference to Exhibit 4(b)(viii) to
General Motors Corporations Annual Report on
Form 10-K
filed February 28, 2008
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4
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(c)
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Specimen Certificate for Shares of Common Stock of GM
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4
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(d)
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Restated Certificate of Incorporation dated March 1, 2004,
incorporated by reference to Exhibit 3(i) to General Motors
Corporations Annual Report on
Form 10-K
filed March 11, 2004
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4
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(e)
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Bylaws of General Motors Corporation, as amended, as of
March 5, 2007, incorporated by reference to
Exhibit 3.1 to General Motors Corporations Current
Report on
Form 8-K
filed March 9, 2007
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4
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(f)
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|
Form of Convertible Debenture, incorporated by reference to
Exhibit 99.5 to Amendment No. 1 to General Motors
Corporations Report on
Form 8-A
filed June 4, 2007
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5
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|
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|
Opinion and Consent of Martin I. Darvick, Esq., Attorney,
Legal Staff of GM, regarding securities issued by GM
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12
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|
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|
Statement Regarding the Computation of Ratio of Earnings to
Fixed Charges
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23
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|
(a)
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Consent of Deloitte & Touche LLP
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23
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(b)
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|
Consent of Martin I. Darvick, Esq., Attorney, Legal Staff
of the Registrant (included in Exhibit 5)
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23
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|
(c)
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|
Consent of Hamilton, Rabinovitz & Associates, Inc.
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24
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|
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|
Powers of Attorney for directors and officers of GM
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25
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(a)
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Statement of Eligibility of Trustee on
Form T-1
of The Bank of New York Mellon for the Senior Debt Indenture of
GM
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25
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(b)
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Statement of Eligibility of Trustee on
Form T-1
of The Bank of New York Mellon for the Subordinated Debt
Indenture of GM
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* |
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To be filed by amendment or under cover of
Form 8-K. |