-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, jZghh8B1jdQOW/Wk8N4d9JaPygVsuZzH3zcitRJN7TgBmgpBbJF8nLaxPlGSfwUj CrMr3rfLXkYobqQGQh3muw== 0000950124-95-000746.txt : 19950615 0000950124-95-000746.hdr.sgml : 19950615 ACCESSION NUMBER: 0000950124-95-000746 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19950303 ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19950317 SROS: MSE SROS: NASD SROS: NYSE SROS: PHLX SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MOTORS CORP CENTRAL INDEX KEY: 0000040730 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLES & PASSENGER CAR BODIES [3711] IRS NUMBER: 380572515 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-00143 FILM NUMBER: 95521575 BUSINESS ADDRESS: STREET 1: 3044 W GRAND BLVD CITY: DETROIT STATE: MI ZIP: 48202 BUSINESS PHONE: 3135565000 8-K 1 REPORT ON FORM 8-K DATED 3-3-95 1 GENERAL MOTORS CORPORATION FORM 8-K CURRENT REPORT DATE OF REPORT - MARCH 3, 1995 FILED PURSUANT TO SECTION 13 OF THE SECURITIES EXCHANGE ACT OF 1934 2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549-1004 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) March 3, 1995 ------------- GENERAL MOTORS CORPORATION ------------------------------------------------------ (Exact name of registrant as specified in its charter) STATE OF DELAWARE 1-143 38-0572515 - ---------------------------- ------------------------ ------------------- (State or other jurisdiction (Commission File Number) (I.R.S Employer of incorporation) Identification No.) 767 Fifth Avenue, New York, New York 10153-0075 3044 West Grand Boulevard, Detroit, Michigan 48202-3091 - -------------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (313)-556-5000 -------------- 3 ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (c) Exhibits Exhibit 10(g) Agreement made as of March 3, 1995, By and Between General Motors Corporation and The Pension Benefit Guaranty Corporation 10(h) Registration Rights Agreement By and Between General Motors Corporation and United States Trust Company of New York as Trustee of the General Motors Hourly-Rate Employees Pension Plan SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. GENERAL MOTORS CORPORATION -------------------------- (Registrant) Date March 17, 1995 By -------------- s/Wallace W. Creek ------------------------------- (Wallace W. Creek, Comptroller) EX-10.(G) 2 AGREEMENT AS OF MARCH 3, 1995 BETWEEN GM AND PBGC 1 EXHIBIT 10(g) AGREEMENT MADE AS OF MARCH 3, 1995, BY AND BETWEEN GENERAL MOTORS CORPORATION AND THE PENSION BENEFIT GUARANTY CORPORATION 2 CONTENTS Section 1: Definitions .............................. 2 Actuarial Valuation Report ............................. 2 Adjusted Fair Market Value ............................. 2 Applicable Percentage .................................. 2 Cash Credit Balance .................................... 2 Code ................................................... 3 Contributed Shares ..................................... 3 Contributed Value ...................................... 3 Contributing Sponsor ................................... 3 Contribution Credit Balance ............................ 3 Contribution Date ...................................... 3 Controlled Group ....................................... 4 Designated Cash ........................................ 4 Dividend Base Fraction For GM Class E Stock ............ 5 EDS .................................................... 5 EDS Future Affiliates .................................. 5 EDS Plans .............................................. 5 EDS Releasees .......................................... 5 EDS Subsidiaries ....................................... 6 EDS Transferee ......................................... 7 Effective Date ......................................... 7 ERISA .................................................. 7 ERISA Limits ........................................... 8 Employer Security ...................................... 8 Excessive Transfer ..................................... 8 Exchanged Shares ....................................... 8 Extraordinary Contribution ............................. 9 Extraordinary Contribution Provision ................... 9 Extraordinary Items .................................... 9 Fair Market Value ...................................... 9 Final Order ............................................ 9 Funding Interest Rate .................................. 10 Funding Standard Account ............................... 10 GAAP ................................................... 10 GM ..................................................... 10 GM Class E Stock ....................................... 10 GM's Adjusted Net Income ............................... 10 GM's Cash .............................................. 11 GM's North American Operations ......................... 11 GM Pension Liability ................................... 12 GM Pension Plans ....................................... 12 GM Share ............................................... 12 GM Subsidiary .......................................... 13 Hourly Plan ............................................ 13 Independent Fiduciary .................................. 13 Intended Beneficiaries ................................. 13 IRS .................................................... 13 Labor Secretary ........................................ 13
i 3 Material Transfer ...................................... 13 Named Fiduciary ........................................ 14 Net Charges ............................................ 14 Net Credits ............................................ 15 NewSub ................................................. 15 Non-Employer Security .................................. 15 PBGC ................................................... 16 Plan Year .............................................. 16 Qualified EDS Transaction .............................. 16 Restructuring Charges .................................. 17 Sold Stock Credit Balance .............................. 18 Statutory Funding Requirements ......................... 18 Stock Credit Balance ................................... 18 Then-Current Fair Market Value ......................... 19 Transaction Date ....................................... 19 Treasury Secretary ..................................... 19 Unsold Contributed Shares .............................. 19 Unsold Shares .......................................... 19 Value Received ......................................... 20 Section 2: GM's Extraordinary Contribution ............. 21 (a) Total Value Contributed ........................... 21 (b) Variation in Number of Shares Contributed ......... 21 (c) Timing of the Extraordinary Contribution .......... 23 (d) Security Regarding Final $2 Billion of Designated Cash ................................... 23 (e) Conditions to GM's Obligation to Make the Extraordinary Contribution ........................ 24 (f) Obligation to Negotiate in Good Faith if Shares of GM Class E Stock are Not Contributed in One Tranche .................................... 26 Section 3: No Effect on Statutory Funding Requirements or Enforcement .............................. 27 (a) Minimum Funding and Its Enforcement ............... 27 (b) Notice to Funding Enforcement Agencies ............ 28 (c) Remedies Respecting Statutory Funding Requirements ...................................... 30 Section 4: Use of Contribution Credit Balance .......... 32 Section 5: Integration With New Law .................... 36 Section 6: Financial Flexibility ....................... 38 (a) General Rule ...................................... 38 (b) Certain Changes in the Composition of GM's North American Operations ......................... 39
ii 4 Section 7: Employer Securities ......................... 41 (a) Twenty-Five Percent Holdback ...................... 41 (b) General Rules Regarding Sold Stock Credit Balance .................................... 42 (c) Sold Stock ........................................ 44 (d) Unsold Stock ...................................... 44 (e) Independent Fiduciary ............................. 45 Section 8: Enforcement of Contribution Credit Balance Restrictions ........................ 47 (a) Notice of Alleged Violation ....................... 47 (b) 60-day Period ..................................... 49 (c) Collateral ........................................ 49 Section 9: Releases and Covenants Not to Sue ........... 53 (a) Initial Release and Covenant Not to Sue Respecting EDS Releasees and GM ................... 53 (b) Initial Release and Covenant not to Sue Respecting EDS Transferees and GM ................. 53 (c) PBGC's Obligation to Deliver Specific Releases and Covenants Not to Sue .......................... 53 (d) Certification Process ............................. 60 (e) Limitation on Excessive Transfers ................. 62 (f) Resolution or Waiver in the Event of an Excessive Transfer ................................ 66 (g) Suspension of PBGC's Obligation to Deliver Specific Releases and Covenants Not to Sue ........ 71 (h) Procedures for Resolving Disputes Over Whether an Excessive Transfer Has Occurred ........ 72 (i) PBGC's Duty to Execute and Deliver to GM Additional, Specific Releases in the Future ....... 79 (j) PBGC's Further Assurances ......................... 79 (k) No Release From Liability Respecting the EDS Plans ..................................... 80 (l) Effect of Reentry into GM Controlled Group ........ 80 (m) Extension of Time Periods ......................... 80 (n) Irreparable Injury ................................ 81 (o) Certain New Subsidiaries .......................... 81 Section 10: Intended Beneficiaries ...................... 83 Section 11: Representations and Warranties of GM ........ 84 (a) Organization ...................................... 84 (b) Authorization ..................................... 84 (c) No Legal Bar ...................................... 84 (d) Enforceability .................................... 85 (e) Opinion of Counsel ................................ 85 (f) GM Pension Plans .................................. 86
iii 5 (g) Material Transfers ................................ 86 Section 12: Representations and Warranties of PBGC ...... 87 (a) Organization ...................................... 87 (b) Authorization ..................................... 87 (c) No Legal Bar ...................................... 87 (d) Enforceability .................................... 88 (e) Opinion of Counsel ................................ 88 Section 13: GM's Reporting Obligations .................. 89 (a) Income and Cash Schedules ......................... 89 (b) Actuarial Valuation Reports ....................... 90 (c) Annual Report (Form 5500) ......................... 91 (d) Asset Trust Statements ............................ 91 (e) Notice of Missed Funding Contributions ............ 92 (f) Use of Contribution Credit Balance ................ 92 (g) Additional Information ............................ 93 (h) Transfer of Controlling Interest .................. 93 (i) Independent Accountant Procedures ................. 95 (j) Termination of Reporting Obligations .............. 96 Section 14: Fees and Expenses ........................... 97 Section 15: Certain Transfers by GM to a New Parent ..... 98 (a) General ........................................... 98 (b) New Parent's Required Agreement ................... 98 (c) Definitions ....................................... 99 (d) New Parent's Rights and Defenses, and Termination of New Parent's Obligations ........... 100 Section 16: General Provisions .......................... 101 (a) Limitation of Rights .............................. 101 (b) Severability ...................................... 101 (c) Notices ........................................... 101 (d) Business Days ..................................... 103 (e) Change of Plan Year ............................... 103 (f) Counterparts ...................................... 104 (g) Entire Agreement .................................. 104 (h) No Admission of Liability ......................... 104 (i) Survival of Representations and Warranties ........ 105 (j) No Reliance ....................................... 105 (k) Amendments and Waivers ............................ 105 (l) Headings .......................................... 106 (m) Governing Law ..................................... 106 (n) Binding Effect .................................... 106 (o) Construction ...................................... 106 (p) Reservation of Rights ............................ 107 (q) Confidential Information .......................... 107
iv 6 (r) Assignment ........................................ 110 (s) No Change to Governing Plan Documents or Plan Administration ............................... 110 (t) Role of Named Fiduciary ........................... 111
v 7 AGREEMENT This Agreement ("Agreement") is made as of March 3, 1995, by and between General Motors Corporation, a Delaware corporation, and the Pension Benefit Guaranty Corporation, a United States government corporation. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged by each party hereto, GM and PBGC agree as follows. 8 SECTION 1: DEFINITIONS "Actuarial Valuation Report" has the meaning set forth in section 13(b) of this Agreement. "Adjusted Fair Market Value" of an Unsold Share means, on any date, the Unsold Share's Fair Market Value on that date plus accumulated dividends paid on such Unsold Share (including in the case of an Unsold Exchanged Share dividends paid on the Contributed Share that was exchanged or redeemed for, or converted into, the Exchanged Share) from the date such Share was contributed to the Hourly Plan through the date such Share's Adjusted Fair Market Value is determined. "Applicable Percentage" means an amount equal to one minus a fraction, the numerator of which fraction equals the number of shares of GM Class E Stock (or Exchanged Shares but only if the Exchanged Shares represent an equity interest in EDS) held by the Hourly Plan on the Transaction Date, and the denominator of which fraction equals the total number of shares of that same class of stock outstanding on the Transaction Date. "Cash Credit Balance" means the credit balance in the Funding Standard Account resulting from the Designated Cash portion of the Extraordinary Contribution, including interest computed at the Funding Interest Rate. - 2 - 9 "Code" means the Internal Revenue Code of 1986, as amended, 26 U.S.C. Section 1, et seq., and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of the Code shall be construed to refer also to any successor or substantially related sections of similar import. "Contributed Shares" means those shares of GM Class E Stock contributed pursuant to section 2 of this Agreement. Contributed Shares do not include Exchanged Shares. "Contributed Value" with respect to a security or other asset is the Fair Market Value of that security or asset as of the date on which the security or asset is received by the Hourly Plan. "Contributing Sponsor" has the meaning set forth in section 4001(a)(13) of ERISA. "Contribution Credit Balance" means the sum of (i) the Cash Credit Balance and (ii) the Stock Credit Balance, including the cash, if any, contributed pursuant to section 2(b) of this Agreement. "Contribution Date" with respect to a security or asset means the date as of which that security or asset is deemed - 3 - 10 contributed to the Hourly Plan pursuant to section 302 of ERISA and section 412 of the Code. "Controlled Group" has the meaning set forth in section 4001(a)(14) of ERISA. "Designated Cash" means any cash contributed to the Hourly Plan on or before September 30, 1995, that GM designates as being in full or partial satisfaction of section 2(a)(ii) of this Agreement by delivering to the Independent Fiduciary and to PBGC a writing in the form of Appendix D1 hereto by the later of (i) 90 days after the date such cash is contributed to the Hourly Plan, or (ii) 45 days from the date on which GM makes a contribution of GM Class E Stock to the Hourly Plan that results in the Hourly Plan exceeding the 10% limit set forth in section 407(a)(2) of ERISA. Cash contributed to the Hourly Plan shall not constitute Designated Cash, and hence shall not be subject to this Agreement, unless (i) the cash is in excess of the contribution determined by the Hourly Plan's enrolled actuary to be otherwise required under section 302 of ERISA and section 412 of the Code for the Plan Year for which such cash is contributed, and (ii) GM designates such cash as being in full or partial satisfaction of section 2(a)(ii) of this Agreement. Subject to the foregoing, GM may treat as Designated Cash (but shall not be required to treat as such) - 4 - 11 any amounts contributed to the Hourly Plan on or after May 9, 1994. "Dividend Base Fraction For GM Class E Stock" means the fraction provided for in ARTICLE FOURTH, DIVISION I:(a)(5) of GM's Restated Certificate of Incorporation, as amended, and as such fraction and Certificate of Incorporation are in effect at the last Contribution Date for the Contributed Shares. "EDS" means Electronic Data Systems Corporation, a Texas corporation that currently is a wholly-owned subsidiary of RGR Holdings, Inc., a corporation that in turn is a wholly-owned subsidiary of GM. "EDS Future Affiliates" means any person that becomes a member of a Controlled Group with EDS after the Transaction Date, other than a person that is or was at any time a member of GM's Controlled Group. "EDS Plans" means the Electronic Data Systems Corporation Retirement Plan, and every other defined benefit pension plan (if any) covered by Title IV of ERISA for which EDS, an EDS Subsidiary or an EDS Releasee is a Contributing Sponsor. "EDS Releasees" means EDS plus RGR Holdings, Inc., a Delaware corporation, plus the EDS Subsidiaries plus the EDS - 5 - 12 Future Affiliates, plus any person identified in part (i) or (ii) of the definition of EDS Subsidiaries that is not in EDS's Controlled Group as of the Transaction Date but is transferred in whole or in part to a third party in conjunction with a Qualified EDS Transaction or in a transaction reasonably related to or reasonably necessary to effect a Qualified EDS Transaction, plus each and all of the agents, advisors, legal counsels, partners, joint venturers, officers, directors and assigns of any of the foregoing persons or any of them. Notwithstanding the foregoing, "EDS Releasees" shall not include (i) GM or any other person that was a member of GM's Controlled Group before the Transaction Date and continues without interruption to be a member of GM's Controlled Group immediately following the Transaction Date, or (ii) if GM elects to receive alternative Releases and Covenants Not to Sue pursuant to section 9(f)(i)(D)(ii) of the Agreement, the corporations (if any) that are not released under section 9(f)(i)(D)(ii) of the Agreement. "EDS Subsidiaries" means (i) the persons listed on Appendix S to this Agreement, all of which are owned, directly or indirectly, by EDS as of the Effective Date, plus (ii) the additional persons, if any, in which EDS acquires a "controlling interest" within the meaning of Treas. Reg. Section 1.414(c)-(2)(b)(2) after the Effective Date and on or before the Transaction Date, provided that those persons are members of EDS's Controlled Group as of the Transaction Date. - 6 - 13 "EDS Transferee" means any purchaser or other direct or indirect transferee of any or all of the stock or assets of any of the EDS Releasees, by way of purchase, sale, assignment, pledge, exchange, conversion, merger, consolidation, amalgamation or otherwise, and each of their parent organizations, subsidiary organizations, successors and assigns (whether present or future), or any of them (whether or not incorporated), and each and all of their agents, advisors, legal counsels, fiduciaries, partners, joint venturers, officers, directors and assigns, or any of them, but specifically excluding (i) any person who is, after the Transaction Date, a member of GM's Controlled Group, and (ii) if GM elects to receive alternative Releases and Covenants Not to Sue pursuant to section 9(f)(i)(D)(ii) of the Agreement, the corporations (if any) that are not released under section 9(f)(i)(D)(ii) of the Agreement, and (iii) any GM Subsidiary that is not a member of EDS's Controlled Group immediately after the Transaction Date. "Effective Date" means the first date stated on page one of this Agreement. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. Section 1001, et seq., and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time - 7 - 14 to time. References to sections of ERISA shall be construed to refer also to any successor or substantially related sections of similar import. "ERISA Limits" means, with respect to Employer Securities held by the Hourly Plan at the time application of the term "ERISA Limits" is at issue, that: (1) the aggregate fair market value of all Employer Securities held by the Hourly Plan does not exceed 10 percent of the fair market value of the assets of the Hourly Plan at such time; (2) no more than 25 percent of the aggregate amount of stock of the same class of Employer Securities issued and outstanding is held by the Hourly Plan at such time; and (3) at least 50 percent of the aggregate amount of stock of the same class of Employer Securities issued and outstanding is held by persons independent of the issuer at such time. "Employer Security" has the meaning set forth in section 407(d)(1) of ERISA. "Excessive Transfer" has the meaning set forth in section 9(e) of this Agreement. "Exchanged Shares" means shares, if any, received by the Hourly Plan in exchange for, or upon the conversion or redemption of, the Contributed Shares. - 8 - 15 "Extraordinary Contribution" means the GM Class E Stock (including cash in lieu of stock, if any) and the Designated Cash contributed to the Hourly Plan in accordance with section 2 of this Agreement. "Extraordinary Contribution Provision" means GM's contribution of the Class E Stock (including cash in lieu of stock, if any) and the Designated Cash described in section 2(c)(i) and 2(c)(ii) of this Agreement (or in the case of section 2(c)(ii), GM's providing the other consideration described in section 2(d) of this Agreement). "Extraordinary Items" means those gains or losses that are extraordinary items under GAAP. "Fair Market Value" means the fair market value of an asset as determined by the Independent Fiduciary. In determining Fair Market Value, the Independent Fiduciary may take into consideration the opinion of an independent financial advisor to the Independent Fiduciary. This definition does not apply for purposes of determining "fair value" under section 9 of the Agreement or for purposes of determining "Fair Value" under section 15 of the Agreement. "Final Order" means an order that has not been reversed, stayed, modified or amended, and (a) as to which any right to an appeal or to seek reconsideration, certiorari, or review has been waived, or (b) as to which time to appeal or to seek - 9 - 16 reconsideration, certiorari, or review has expired, and as to which no motion for reconsideration, appeal, or petition for certiorari or review is pending. "Funding Interest Rate" means the interest rate used by the Hourly Plan's enrolled actuary for purposes of section 412(b)(5)(A) of the Code and section 302(b)(5)(A) of ERISA. "Funding Standard Account" means the funding standard account maintained for the Hourly Plan pursuant to section 302 of ERISA and section 412 of the Code. "GAAP" means generally accepted accounting principles as in effect at the time the application of those principles is at issue. "GM" means General Motors Corporation, a Delaware corporation. "GM Class E Stock" means General Motors Corporation Class E Common Stock, $0.10 par value. "GM's Adjusted Net Income" for a Plan Year means the consolidated net income of GM's North American Operations determined under GAAP as of December 31 of the calendar year (as shown in the Management Discussion and Analysis section of GM's Form 10-K for such period) that ends during that Plan Year, plus - 10 - 17 (1) the amount (on an after-tax basis) of one-time accounting transition charges (i.e., the cumulative effect of accounting changes pursuant to the adoption of a new, revised, amended or restated accounting standard in accordance with GAAP), Extraordinary Items and Restructuring Charges for that calendar year, minus (2) one-fifth per year for five years, of one-time Restructuring Charges (on an after-tax basis) beginning in the year the Restructuring Charges are first recognized. "GM's Cash" for a Plan Year means U.S. Automotive (GMC Account) cash and marketable securities owned by GM, measured as of December 31 of the calendar year that ends during the Plan Year, under GAAP. For this purpose, U.S. Automotive (GMC) Account means the set of GM corporate accounts that reflect all the cash balances relating to GM's U.S. Automotive Operations and GM corporate activities, and shall include but not be limited to the accounts through which all U.S. automotive receipts and disbursements flow, the accounts from which all GM dividend disbursements, debt repayments, equity issuances, U.S. cash pension contributions and other corporate expenses are paid, and the accounts into which flow all dividends from GM Overseas Operations, EDS, GM Hughes Electronics Corporation, and the General Motors Acceptance Corporation. "GM's North American Operations" means all of those operations whose financial results are included in the Results for the North American Automotive Operations of GM - 11 - 18 ("NAO") as set forth in the GM Annual Report on Form 10-K, as last filed with the U.S. Securities and Exchange Commission as of the time application of this term may be at issue for purposes of this Agreement. "GM Pension Liability" means any and all liabilities or obligations now existing, or hereafter arising, to PBGC (on its own behalf, as trustee for any plan, or in any other capacity) or to the GM Pension Plans under Title IV of ERISA with respect to the GM Pension Plans or the termination of the GM Pension Plans, including without limitation any liability under section 302 of Title I of ERISA or under Title IV of ERISA (including without limitation, any lien, liability, or obligation under section 4042, 4062, 4068 or 4069 of ERISA, 29 U.S.C. Section 1342, 1362, 1368 or 1369). "GM Pension Plans" means every defined benefit pension plan covered by Title IV of ERISA for which GM or a GM Subsidiary is a Contributing Sponsor as of or at any time prior to or at any time after the Transaction Date, provided, however, that GM Pension Plans shall not include any plans for which EDS or an EDS Subsidiary is a Contributing Sponsor. "GM Share" means an equity security issued by GM, including without limitation a share of GM Class E Stock. - 12 - 19 GM Shares do not include shares or securities issued by persons other than GM that are received in exchange for, or upon conversion or redemption of, GM Shares. "GM Subsidiary" means each and every person that is or was at any time on or after May 9, 1994, a member of GM's Controlled Group, except for EDS, RGR Holdings, Inc., and the EDS Subsidiaries listed on Appendix S to this Agreement. "Hourly Plan" means the General Motors Hourly-Rate Employees Pension Plan (Employer Identification number 38-0572515, plan number 003). "Independent Fiduciary" means U.S. Trust Company of New York in its capacity as independent fiduciary of the Hourly Plan, or a successor independent fiduciary of the Hourly Plan appointed pursuant to section 7(e) of this Agreement. "Intended Beneficiaries" has the meaning set forth in section 10 of this Agreement. "IRS" means the United States Internal Revenue Service. "Labor Secretary" means the United States Secretary of Labor. "Material Transfer" means any individual payment or transfer, from May 9, 1994 through the Transaction Date, from GM or a GM Subsidiary that is a member of GM's Controlled - 13 - 20 Group and not a direct or indirect subsidiary of EDS at the time of such transfer or payment to or into EDS, RGR Holdings, Inc., or an EDS Subsidiary that (i) is not in the ordinary course of business of GM or EDS, and (ii) consists of assets, operations or stock having a fair value, on the date the payment or transfer is made, of not less than $50 million. In the case of a transfer described above consisting of stock of a single GM Subsidiary made in more than one transaction, all such stock transfers with respect to that GM Subsidiary shall be aggregated for purposes of applying this definition of Material Transfer, and the value of such stock shall be determined as of the date of each such transfer; provided, however, that if the single GM Subsidiary ceases to be a member of GM's Controlled Group as a result of a Qualified EDS Transaction, value shall be determined as of the date the GM Subsidiary ceases to be a member of GM's Controlled Group. "Named Fiduciary" means the Finance Committee of the Board of Directors of GM in its capacity as the named fiduciary designated in section 4 of the Hourly Plan and any successor Named Fiduciary. "Net Charges" with respect to a Plan Year means the sum of the amounts charged to the Funding Standard Account of the Hourly Plan for that Plan Year pursuant to section 302 of ERISA and section 412 of the Code. - 14 - 21 "Net Credits" with respect to a Plan Year means the sum of the amounts credited to the Funding Standard Account of the Hourly Plan for that Plan Year pursuant to section 302 of ERISA and section 412 of the Code, excluding any credit balance and any amount considered contributed to or under the Hourly Plan for that Plan Year (together with any interest thereon at the Funding Interest Rate). "NewSub" means a corporation (i) that is organized after the Effective Date as a result of a reorganization of a GM Subsidiary that was in existence as of May 9, 1994, that was not a direct or indirect subsidiary of EDS at the time of such reorganization, and that had a fair value greater than $1 billion at the time of such reorganization, (ii) where assets, operations or subsidiaries of that reorganized GM Subsidiary are transferred to such newly-organized corporation, (iii) where, at any time during the three-consecutive-year period ending on the Transaction Date, such newly-organized corporation is part of GM's Controlled Group but is not owned by the reorganized GM Subsidiary, and (iv) where the reorganized GM Subsidiary did not receive fair value for the newly-organized corporation. "Non-employer Security" means any security that is not an Employer Security. - 15 - 22 "PBGC" means the Pension Benefit Guaranty Corporation, a U.S. government corporation established under section 4002 of ERISA. "Plan Year" means a plan year of the Hourly Plan. The 1993 Plan Year, for example, means the plan year that begins October 1, 1993 and ends September 30, 1994. If, consistent with applicable law, GM elects to change the plan year of the Hourly Plan, "Plan Year" means the plan year of the Hourly Plan as changed, and the provisions of section 16(e) of this Agreement shall apply. "Qualified EDS Transaction" means any transaction or series of transactions (including without limitation any transaction or series of transactions by which GM Class E Stock is exchanged, converted or redeemed for capital stock of EDS) by which EDS ceases to be a member of GM's Controlled Group, unless, immediately after the Transaction Date (i) more than 2.5% of the Then- Current Fair Market Value of the Hourly Plan's assets consists of Contributed Shares or Exchanged Shares that are GM Shares, and (ii) more than 5% of the Then-Current Fair Market Value of the Hourly Plan's assets consists of Employer Securities. Notwithstanding the foregoing, even if immediately after the Transaction Date, more than 2.5% of the Then-Current Fair Market Value of the Hourly Plan's Assets consists of Contributed Shares or Exchanged Shares that are GM Shares, and more than 5% of the - 16 - 23 Then-Current Fair Market Value of the Hourly Plan's assets consists of Employer Securities, such transaction nonetheless will become a Qualified EDS Transaction if and upon any later date that falls not more than 120 days after the Transaction Date either (i) no more than 2.5% of the Then-Current Fair Market Value of the Hourly Plan's assets consists of Contributed Shares or Exchanged Shares that are GM Shares, or (ii) no more than 5% of the Then-Current Fair Market Value of the Hourly Plan's assets consists of Employer Securities. For purposes of this definition of Qualified EDS Transaction, in determining whether the 5% limit is exceeded, any security that would otherwise constitute an Employer Security and that is contributed to the Hourly Plan after the last Contribution Date for the Contributed Shares shall be deemed to be a Non-employer Security if (i) the contribution of such security is within the ERISA Limits, and (ii) the credit balance in the Funding Standard Account resulting from the contribution of such security is unused on the Transaction Date. "Restructuring Charges" means those liabilities incurred on or after the Effective Date recognized in order to reflect the future cost associated with restructuring activities involving GM's North American Operations (such as the closing or downsizing of a facility that is part of GM's North American Operations), less expected net realizable value from - 17 - 24 related asset dispositions, as recorded in accordance with GAAP. "Sold Stock Credit Balance" means an amount determined for purposes of this Agreement that is equal to (i) the portion of the Stock Credit Balance attributable to shares of GM Class E Stock contributed pursuant to this Agreement that are subsequently sold (including Exchanged Shares, if any, that are subsequently sold), adjusted as necessary under section 7(c) of this Agreement, plus (ii) the cash contributed pursuant to section 2(b) of this Agreement, if any, with interest thereon at the Funding Interest Rate. For this purpose, the Sold Stock Credit Balance will include interest at the Funding Interest Rate from the date of contribution, based on the Fair Market Value at the time contributed, provided, however, that from the date of sale such interest shall run on the value as adjusted under section 7(c) of this Agreement. "Statutory Funding Requirements" means the minimum funding requirements for the Hourly Plan under section 302 of ERISA and section 412 of the Code. "Stock Credit Balance" means the credit balance in the Funding Standard Account resulting from the stock portion of the Extraordinary Contribution, including (i) the cash, if - 18 - 25 any, contributed pursuant to section 2(b) of this Agreement, and (ii) interest computed at the Funding Interest Rate. "Then-Current Fair Market Value" of a Contributed Share as of a date means the Fair Market Value of that Share as of that date. "Then-Current Fair Market Value" of any other asset as of a date means the fair market value of that asset as of that date. This definition does not apply for purposes of determining "fair value" under section 9 of the Agreement or for purposes of determining "Fair Value" under section 15 of the Agreement. "Transaction Date" with respect to the Qualified EDS Transaction (including a transaction that becomes a Qualified EDS Transaction) means the date on which EDS ceases to be a member of GM's Controlled Group. "Treasury Secretary" means the United States Secretary of Treasury or his or her delegate as defined in section 7701(a)(12)(A)(i) of the Code. "Unsold Contributed Shares" means, on any date, those Contributed Shares that have not been sold by or on behalf of the Hourly Plan. "Unsold Shares" means, on any date, Contributed Shares or Exchanged Shares that have not been sold by or on behalf of the Hourly Plan. - 19 - 26 "Value Received" means with respect to a Contributed Share or an Exchanged Share the value received upon sale of such Share plus accumulated dividends declared on such Share from the date such Share was contributed to the Hourly Plan (or, in the case of an Exchanged Share, from the date the Contributed Share that was exchanged or redeemed for, or converted into, such Exchanged Share was contributed to the Hourly Plan) and through the date of the Share's sale. - 20 - 27 SECTION 2: GM'S EXTRAORDINARY CONTRIBUTION (a) Total Value Contributed. Subject to satisfaction (or express written waiver by GM) of the conditions set forth in section 2(e) of this Agreement, GM shall make an extraordinary contribution to the Hourly Plan (in excess of the contribution otherwise determined by the Hourly Plan's enrolled actuary to be required under section 302 of ERISA and section 412 of the Code for the Plan Year(s) for which the contribution is made, calculated without regard to the contribution described in this section 2(a)) consisting of: (i) 177 million shares of GM Class E Stock (or a lesser number of shares, so long as GM meets the requirements of section 2(b) of this Agreement, subject to section 2(f) of this Agreement); and (ii) Designated Cash of $4 billion. GM and PBGC shall be bound by sections 1, 2 and 10 through 12 and sections 14 and 16 of this Agreement immediately upon the Effective Date and without any condition whatsoever. If GM satisfies the Extraordinary Contribution Provision, then GM and PBGC shall be bound by sections 3 through 9 and sections 13 and 15 of this Agreement as well, immediately from the date on which GM satisfies the Extraordinary Contribution Provision. (b) Variation in Number of Shares Contributed. GM may include in the Extraordinary Contribution fewer than 177 million shares of GM Class E Stock, provided that, - 21 - 28 immediately after the last contribution of such GM Class E Stock, GM will have included in the Extraordinary Contribution the number of shares of GM Class E Stock that, when added to -- (i) the number of shares of GM Class E Stock outstanding on the date of such last contribution, and (ii) the 44,881,508 shares of GM Class E Stock reserved for possible issuance upon a conversion of GM Series C Convertible Preference Stock pursuant to the Certificate of Designation for such Stock, and (iii) the number of shares of GM Class E Stock that, as of the last contribution of such Stock, are reserved or committed (as Treasury shares or otherwise) for employee benefit plans, stock bonus plans or employee stock programs that were maintained as of March 16, 1994, by members of GM's Controlled Group or agreements related thereto, will equal the denominator of the Dividend Base Fraction for GM Class E Stock, and provided further that, if fewer than 177 million shares of GM Class E Stock are included in the Extraordinary Contribution, then GM shall include in the Extraordinary Contribution an additional amount of cash equal to the product of (A) and (B) below: (A) The sum of the Contributed Values for all shares of GM Class E Stock contributed pursuant to this Agreement divided by the number of shares of GM Class E Stock contributed pursuant to this Agreement. (B) The difference between 177 million and the number of shares of GM Class E Stock contributed pursuant to this Agreement. The additional cash contribution determined under this section 2(b), if any, shall be treated as part of the Extraordinary Contribution and the resulting credit to the - 22 - 29 Funding Standard Account shall be treated as part of the Sold Stock Credit Balance. (c) Timing of the Extraordinary Contribution. The timing of the Extraordinary Contribution shall be as follows: (i) the contribution to the Hourly Plan of the shares of GM Class E Stock described in section 2(a)(i) of this Agreement, or the contribution to the Hourly Plan of the shares of GM Class E Stock and the additional cash described in section 2(b) of this Agreement, shall be completed as soon as reasonably practicable after the satisfaction (or express written waiver by GM) of the conditions set forth in section 2(e) of this Agreement, but in no event later than September 30, 1995, and a payment or payments totalling at least $2 billion of the Designated Cash described in section 2(a)(ii) of this Agreement shall be contributed at the same time or earlier; and (ii) the balance of the Designated Cash described in section 2(a)(ii) of this Agreement shall be contributed to the Hourly Plan by September 30, 1995. (d) Security Regarding Final $2 Billion of Designated Cash. For purposes of section 9 of this Agreement, GM shall be deemed to have contributed the Designated Cash described in section 2(c)(ii) of this Agreement if and when, GM posts for the benefit of the Hourly Plan collateral consistent with the provisions of sections 8(c)(ii) and 8(c)(iii) of this Agreement to secure payment of any unpaid portion of the Designated Cash described in section 2(c)(ii) of this Agreement (the "Designated Cash Security"). PBGC may enforce the Hourly Plan's interest in the Designated Cash Security provided under this section 2(d) if the Designated Cash - 23 - 30 described in section 2(c)(ii) of this Agreement is not contributed to the Hourly Plan by September 30, 1995. Any and all Designated Cash Security shall immediately be released upon receipt by the Hourly Plan of the Designated Cash described in section 2(c)(ii) of this Agreement, plus interest (if any) at the Funding Interest Rate from September 30, 1995 to the date of receipt by the Hourly Plan. (e) Conditions to GM's Obligation to Make the Extraordinary Contribution. GM shall be bound to make the Extraordinary Contribution, subject to satisfaction (or express written waiver by GM) of the following conditions: (i) GM shall have received by September 30, 1995 governmental rulings satisfactory to GM concerning the proposed contribution of GM Class E Stock; (ii) GM shall have received an opinion letter from each of Kirkland & Ellis and Weil, Gotshal & Manges, each in form and substance reasonably acceptable to GM, substantially to the effect that GM Class E Stock is capital stock of GM and therefore no gain would be recognized by GM on the contribution of shares of Class E Stock to the Hourly Plan (the "Contribution Opinions") and such Contribution Opinions shall not have been withdrawn, conditioned, qualified or otherwise modified in a manner adverse to GM; (iii) GM shall have no reason to believe that the assumptions of fact and its representations as set forth in the Contribution Opinions are not true and correct; (iv) the Treasury Secretary shall not have issued any interpretive guidance or regulation that in GM's reasonable opinion would subject GM to the excise tax under section 4972 of the Code as a result of the Extraordinary Contribution; - 24 - 31 (v) GM shall have reached an agreement, in form and substance reasonably satisfactory to GM, with the Independent Fiduciary regarding the valuation of all shares of Class E Stock to be included in the Extraordinary Contribution; (vi) no court of competent jurisdiction or other governmental authority shall have issued an order, decree, ruling or judgment that is still in effect restraining, enjoining or otherwise prohibiting the Extraordinary Contribution (or any portion of the Extraordinary Contribution); (vii) no action, proceeding or investigation by any governmental authority shall be pending that (A) seeks to enjoin or delay consummation of the Extraordinary Contribution (or any portion of the Extraordinary Contribution) or to impose any material restriction or requirement on the Extraordinary Contribution (or any portion of the Extraordinary Contribution) or on GM, any of its subsidiaries or affiliates or the Hourly Plan (other than the restrictions and requirements specifically set forth herein) if the Extraordinary Contribution (or any portion of the Extraordinary Contribution) is made or (B) is reasonably likely to have a material adverse effect on the business, assets, liabilities, results of operations, condition (financial or otherwise) or prospects of GM and its subsidiaries, taken as a whole, if GM makes the Extraordinary Contribution (or any portion of the Extraordinary Contribution); (viii) no action shall have been taken, and no statute, rule, regulation or executive order shall have been enacted, entered, promulgated or enforced by any governmental authority that, individually or in the aggregate, is reasonably likely to (A) prevent or materially hinder the consummation of the Extraordinary Contribution (or any portion of the Extraordinary Contribution), (B) impose any material restriction or requirement on the Extraordinary Contribution (or any portion of the Extraordinary Contribution) or on GM, any of its subsidiaries or affiliates or the Hourly Plan (other than the restrictions and requirements specifically set forth herein) if the Extraordinary Contribution (or any portion of the Extraordinary Contribution) is made or (C) have a material adverse effect on the business, assets, liabilities, results of operations, condition - 25 - 32 (financial or otherwise) or prospects of GM and its subsidiaries, taken as a whole, if GM makes the Extraordinary Contribution (or any portion of the Extraordinary Contribution); (ix) the accounting treatment under GAAP of the Extraordinary Contribution shall be satisfactory to GM's Board of Directors; and (x) the Board of Directors of GM shall not have become aware of any fact of which it was not aware as of the date of this Agreement, and no event shall have occurred and no circumstances shall have changed (including but not limited to any developments in pending litigation) after the date of this Agreement, such that the Board of Directors of GM has determined, in its sole discretion, that making the Extraordinary Contribution (or any portion of the Extraordinary Contribution) is no longer in the best interests of GM and its stockholders. (f) Obligation to Negotiate in Good Faith if Shares of GM Class E Stock are Not Contributed in One Tranche. If GM determines to contribute the shares of GM Class E Stock described in section 2(a)(i) of this Agreement in more than one tranche, and if, after GM contributes one or more tranches of such shares of GM Class E Stock, the facts and circumstances that caused the conditions set forth in section 2(e) of the Agreement to be satisfied or waived by GM have changed, then sections 2(a)(i) and 2(b) of this Agreement shall not apply and GM and PBGC shall negotiate in good faith such modifications to the Agreement as are reasonable and appropriate to carry out the purposes of this Agreement. - 26 - 33 SECTION 3: NO EFFECT ON STATUTORY FUNDING REQUIREMENTS OR ENFORCEMENT (a) Minimum Funding and Its Enforcement. This Agreement does not alter in any way the determination of the Statutory Funding Requirements for the Hourly Plan, including without limitation the determination of credit balance amounts and charges and credits to the Funding Standard Account under section 302 of ERISA and section 412 of the Code. Nor does this Agreement grant or expand any right to enforce the Statutory Funding Requirements, except to the limited extent provided in section 3(b)(iii) below. Rather, with regard to funding of the Hourly Plan, this Agreement sets forth agreed-upon restrictions that contractually limit for certain purposes and for specified periods the availability of certain credit balance amounts in the Funding Standard Account resulting from the Extraordinary Contribution, and those agreed-upon restrictions thus may result in annual contributions to the Hourly Plan with respect to certain periods that exceed the annual contributions that otherwise would be required with respect to those periods under the Statutory Funding Requirements. Consequently, nothing in this Agreement shall alter the values, methods and procedures that may be used by GM or the enrolled actuary for the Hourly Plan to determine the Statutory Funding Requirements. - 27 - 34 (b) Notice to Funding Enforcement Agencies. If PBGC believes that the enrolled actuary for the Hourly Plan has failed to calculate credits and charges to the Funding Standard Account in accordance with the Statutory Funding Requirements, then, except as provided in the last sentence of section 3(c) below, PBGC's sole recourse shall be as follows: (i) PBGC may request in writing that the Treasury Secretary request that the Labor Secretary consider bringing suit pursuant to sections 502(b)(1) and (a)(5) of ERISA respecting the alleged failure to comply with the Statutory Funding Requirements identified by PBGC. At least ten days before making such request to the Treasury Secretary, PBGC shall advise GM in writing that PBGC is making such a request and shall identify the grounds upon which such request is based. PBGC shall furnish to GM a copy of each and every writing that it submits to the Treasury Secretary in connection with PBGC's request at the same time such writing(s) are submitted to the Treasury Secretary by PBGC. Similarly, GM shall provide to PBGC a copy of any writings it submits to the Treasury Secretary under this section 3(b)(i) at the same time such writings are submitted to the Treasury Secretary. (ii) If the Labor Secretary brings the action requested by the Treasury Secretary based upon and limited to the grounds identified by PBGC to GM, as described in section 3(b)(i) of this Agreement, GM will not interpose as a defense that, because there is or was no deficiency in the Funding Standard Account because of the Contribution Credit Balance, the Labor Secretary does not have a claim or right to enforce the Statutory Funding Requirements. (iii) Notwithstanding section 3(a) of this Agreement, if the Labor Secretary's action respecting the Statutory Funding Requirements identified in paragraph (ii) above is dismissed for lack of subject matter jurisdiction on the grounds that there is or was no deficiency in the Funding Standard Account because of the Contribution Credit Balance, then - 28 - 35 (A) compliance with that portion of the Statutory Funding Requirements as to which the Labor Secretary alleged a violation based upon and limited to the grounds identified by PBGC to GM shall become a requirement of this Agreement applicable solely to the act or omission that the Labor Secretary, upon request by the Treasury Secretary, alleged constituted the violation, and (B) the additional requirement of this Agreement designated in the preceding clause shall be enforceable by PBGC, and only by PBGC. PBGC may immediately file an action in an appropriate court to enforce such requirement. Any statute of limitations respecting an action by PBGC under this section 3(b)(iii) shall be tolled upon the filing of an action by the Labor Secretary under section 3(b)(i). (iv) Nothing in this section 3(b) of the Agreement shall preclude the Treasury Secretary from requesting, or the Labor Secretary from bringing, an action based on issues not identified by PBGC. (v) If the Labor Secretary or PBGC prevails in whole or in part in an action brought pursuant to section 3(b)(i) or (iii) of this Agreement, PBGC shall serve upon GM a notice recalculating GM's minimum funding as provided in the court's order. GM retains all rights under applicable law to appeal and otherwise to seek review of any court order issued in an action brought pursuant to section 3(b)(i) or (iii), and to seek a stay of enforcement of any such order(s) pending appeal or review. If enforcement is not stayed (because, for example, the order becomes a Final Order or GM elects not to post the security, if any, required by the court as a condition for obtaining a stay), GM shall, within 60 days of the date on which PBGC serves notice under this section 3(b)(v), and provided that no application for a stay of enforcement of the court's order remains pending before a court of competent jurisdiction, defray the resulting additional minimum funding either by making an additional contribution to the Hourly Plan or by drawing down the credit balance in the Funding Standard Account, or both. If enforcement of the court's order is stayed by a court, or if an application by GM for stay of enforcement of the - 29 - 36 court's order is pending before a court of competent jurisdiction, GM shall have no obligation to defray the resulting additional minimum funding under the foregoing sentence until 20 days after the later of (i) the date on which all such stays of the court's order cease to be in effect, or (ii) the date on which all such applications for a stay of the court's order have been denied. If GM does not defray the resulting additional minimum funding contribution (if any) required under this section 3(b)(v) by making an additional contribution to the Hourly Plan, GM shall automatically be deemed to have defrayed such additional minimum funding contribution in whole by drawing down the credit balance in the Funding Standard Account. If GM elects to defray the additional required minimum funding in whole or in part by drawing down the credit balance, if any, GM shall serve on PBGC a notice or revised notice under section 13(f) of this Agreement specifically noting the additional use of the credit balance for the period or periods at issue. If PBGC determines that, as a result of GM's drawing down the credit balance, GM has violated a restriction on the use of the Contribution Credit Balance set forth in this Agreement, then PBGC may provide the notice required under section 8(a) of this Agreement and shall proceed only as provided in section 8 of this Agreement, except that PBGC may file an action under section 8(b) as early as the fifth business day following PBGC's notice under section 8(a), rather than the 61st day following such notice. (c) Remedies Respecting Statutory Funding Requirements. This Agreement does not add to or detract from the Statutory Funding Requirements. Except to the limited extent that compliance with a Statutory Funding Requirement may be incorporated by reference as a requirement of this Agreement pursuant to section 3(b)(iii) above, this Agreement does not give PBGC any right to enforce the Statutory Funding Requirements, either directly or indirectly. If PBGC - 30 - 37 acquires or has acquired authority to enforce the Statutory Funding Requirements as a result of a law of general applicability, PBGC may elect to pursue either the remedies granted under such law or the procedures set forth in section 3(b) of this Agreement, but not both. - 31 - 38 SECTION 4: USE OF CONTRIBUTION CREDIT BALANCE The Contribution Credit Balance shall be taken into account under the terms and conditions set forth in sections 4, 5, 6 and 7 of this Agreement. The application of certain of those terms and conditions is illustrated in Appendix C1 to this Agreement. (a) For purposes of determining the amount required to be contributed to the Hourly Plan for any period through the end of the 1995 Plan Year, no portion of the Contribution Credit Balance shall be taken into account, except that at GM's sole discretion interest on the Cash Credit Balance at the Funding Interest Rate may be taken into account with immediate effect from the Contribution Date(s) of the corresponding Designated Cash. (b) In addition to the foregoing, and subject to section 7(a) of this Agreement, for purposes of determining the amount required to be contributed to the Hourly Plan for the 1996 Plan Year and subsequent Plan Years, up to the entire amount of the Cash Credit Balance may be taken into account, with immediate effect from the first day of the 1996 Plan Year. (c) In addition to the foregoing, for purposes of determining the amount required to be contributed to the Hourly Plan for the 1998 Plan Year and subsequent Plan Years, - 32 - 39 up to $1.45 billion of the amount of the Stock Credit Balance may be taken into account for each such Plan Year from the first day of each such Plan Year, subject to the limitations on the availability of the Stock Credit Balance set forth in section 7 of this Agreement. (d) Nothing in this Agreement shall be construed to require that all portions of the Contribution Credit Balance made available under one or more of sections 4(a), 4(b), 4(c), 5 or 6 of this Agreement be applied for purposes of reducing the amount that is contributed to the Hourly Plan for any Plan Year. Further, any portion of the Contribution Credit Balance made available under one or more of sections 4(a), 4(b), 4(c) or 5 of this Agreement that is not used for purposes of reducing the amount that is contributed to the Hourly Plan for a given Plan Year (either because GM elected not to use such portion or because an insufficient number of shares of GM Class E Stock have been sold by the Hourly Plan) shall be carried forward with interest (computed at the Funding Interest Rate) to future years and may be used in addition to any amounts or credits otherwise allowed by this Agreement. (e) Notwithstanding any other restriction in this Agreement (excepting the restriction in section 7(a), which shall cease to apply, or not, as provided in that section), for purposes of determining the amount required to be - 33 - 40 contributed to the Hourly Plan for the 2003 Plan Year and subsequent Plan Years, the entire amount of the Contribution Credit Balance as reflected in the Funding Standard Account may be taken into account with immediate effect from the first day of the 2003 Plan Year. (f) Notwithstanding any other provision of this Agreement, the Extraordinary Contribution shall, from the Contribution Date(s) of the Designated Cash and Contributed Shares, respectively, be treated as an asset of the Hourly Plan for all purposes under ERISA and the Code. As a result, and without limiting the foregoing, the entire amount of the Contribution Credit Balance shall, to the extent required by the law in effect at the time, be taken into account in determining the amount of the Hourly Plan's unfunded current liability under section 302(d)(8)(A) of ERISA and section 412(l)(8)(A) of the Code for all purposes, including without limitation, the determination of whether there are any additional funding requirements under those sections and the determination of premiums under ERISA section 4006. (g) The required installments (within the meaning of section 302(e) of ERISA and section 412(m) of the Code) for the Hourly Plan for any Plan Year shall be determined under the Statutory Funding Requirements. However, only the portion of the Contribution Credit Balance that is available for the Plan Year under sections 4 through 7 of this - 34 - 41 Agreement may be applied to satisfy any required installment payment. - 35 - 42 SECTION 5: INTEGRATION WITH NEW LAW Subject to the limitations set forth in section 7 of this Agreement, if with respect to the 1995 Plan Year or any subsequent Plan Year, as a result of any legislation that Congress enacts after May 9, 1994, there is an increase in the difference between (i) Net Charges for that Plan Year and (ii) Net Credits for that Plan Year, above what that difference would have been for that Plan Year under the law in effect on May 9, 1994, then, for purposes of determining the amount required to be contributed for each such Plan Year, an additional amount of the Contribution Credit Balance may be taken into account, with immediate effect from the first day of such Plan Year, equal to the lesser of the following two amounts (the "Legislative Cap"): (a) the amount by which such legislation increased the difference between Net Charges and Net Credits for such Plan Year; and (b) $750 million for each of the 1995 through 1999 Plan Years, and $950 million for the 2000 Plan Year and for each of the Plan Years thereafter through the 2002 Plan Year. Consistent with section 4(d) of this Agreement, any portion of the Legislative Cap that is not used for a Plan Year may be carried forward with interest at the Funding Interest Rate to subsequent Plan Years. In the event an amount is carried forward to a subsequent Plan Year pursuant to the foregoing sentence, then the amount of the Legislative Cap that otherwise would apply in such subsequent Plan Year shall be - 36 - 43 increased by the amount carried forward, provided, however, that under no circumstance shall the additional amount of the Contribution Credit Balance that may be used to determine the amount required to be contributed for any such subsequent Plan Year (including amounts carried forward from prior Plan Years) as a result of this section 5 of the Agreement exceed the amount by which the legislation increased the difference between Net Charges and Net Credits for such subsequent Plan Year. Any legislation that Congress enacts after May 9, 1994 that has a substantially similar effect to that described in this section (by, for example, imposing additional funding requirements other than through the operation of the funding standard account), shall be treated under this section as if it increased the difference between Net Credits and Net Charges. - 37 - 44 SECTION 6: FINANCIAL FLEXIBILITY (a) General Rule. Subject to the limitations set forth in section 7 of this Agreement, for each Plan Year beginning with the 1996 Plan Year, if any, in which GM's Adjusted Net Income is negative by at least $1.5 billion and GM's Cash is less than $3 billion, up to $1 billion annually of the Contribution Credit Balance, in addition to the amount of the Contribution Credit Balance made available under sections 4 and 5 of this Agreement, may be taken into account with immediate effect from the first day of such Plan Year for purposes of reducing the amount required to be contributed to the Hourly Plan for such Plan Year, provided that: (i) whenever an additional amount is taken into account pursuant to this section 6, an equal amount shall be deducted from the amount of the Contribution Credit Balance otherwise made available pursuant to sections 4 and 5 of this Agreement with respect to the earlier of (A) the first day of the first ensuing Plan Year in which GM's Adjusted Net Income is positive by $1 billion or more, or (B) the first day of the fifth Plan Year beginning after the Plan Year in which such additional amount is taken into account pursuant to this section 6, except that, as provided under section 4(e) of this Agreement, no such deduction shall be made for periods beginning on or after the first day of the 2003 Plan Year; and (ii) additional amounts equal to no more than $2 billion in total may be taken into account pursuant to this section 6 with respect to any five consecutive Plan Years. - 38 - 45 (b) Certain Changes in the Composition of GM's North American Operations. (i) Sales of Ongoing Operations. If, for any fiscal year beginning after December 31, 1993, GM excludes from the composition of GM's North American Operations any operations (including subsidiaries) of GM that were included in the composition of GM's North American Operations as of December 31, 1993, due to the sale of such operations as an ongoing business to an unrelated party, and those operations contributed more than five percent of net sales and revenues of GM's North American Operations for the year prior to the year the operations were excluded, then, prior to GM utilizing any credits under section 6(a) of the Agreement, and prior to GM deducting from the amount of the available Contribution Credit Balance pursuant to section 6(a)(i) above, GM and PBGC shall negotiate in good faith whether adjustments to the negative $1.5 billion Adjusted Net Income threshold set forth in the first sentence of section 6(a) of this Agreement and the positive $1 billion threshold set forth in paragraph (i) of section 6(a) of this Agreement are necessary to fairly reflect the operations' exclusion from GM's North American Operations. (ii) Reconfiguration of Ongoing Operations. If for any fiscal year beginning after December 31, 1993, GM includes in the composition of GM's North American Operations any operations (including subsidiaries) of GM that were excluded from the composition of GM's North American Operations as of December 31, 1993 or GM excludes from the composition of GM's North American Operations any operations (including subsidiaries) of GM that were included in the composition of GM's North American Operations as of December 31, 1993, and if GM still owns and continues the operations at issue and those operations contributed (or would have contributed had they been included) more than five percent of the net sales and revenues of GM's North American Operations in the year prior to the year in which GM's North American Operations are reconfigured (a "Reconfiguration"), then PBGC has the right to require GM to recompute GM's Adjusted Net Income as if such Reconfiguration had not occurred in the fiscal year in which the Reconfiguration occurs and the succeeding fiscal year. - 39 - 46 In the case of any Reconfiguration described in the foregoing paragraph, for fiscal years other than those for which PBGC has a right under the foregoing paragraph to require GM to recompute GM's Adjusted Net Income, and prior to GM utilizing any credits under section 6(a) of the Agreement, and prior to GM deducting from the amount of the available Contribution Credit Balance pursuant to section 6(a)(i) above, GM and PBGC shall negotiate in good faith whether any adjustments in the negative $1.5 billion Adjusted Net Income threshold set forth in the first sentence of section 6(a) of this Agreement and the positive $1 billion threshold set forth in subparagraph (i) of section 6(a) of this Agreement are necessary to fairly reflect the Reconfiguration of GM's North American Operations. - 40 - 47 SECTION 7: EMPLOYER SECURITIES (a) Twenty-Five Percent Holdback. Notwithstanding any provision in section 3, 4, 5 or 6 of this Agreement, GM shall maintain in the Funding Standard Account a Cash Credit Balance, or a Sold Stock Credit Balance, or a combination of the two, in an amount equal to or greater than 25% of the sum of the Contributed Value of the Contributed Shares to the extent such shares (or any Exchanged Shares) are still held by the Plan, until the first day of a continuous nine-month period beginning on any day after GM completes the Extraordinary Contribution, during which, on each day within that period, the Hourly Plan satisfies (i), (ii) and (iii) below: (i) the Then-Current Fair Market Value of the Contributed Shares (including Exchanged Shares, if any) still held by the Hourly Plan represents no more than 10% of the Then-Current Fair Market Value of the Hourly Plan's assets; and (ii) the Hourly Plan holds no more than 25% of the total number of shares of GM Class E Stock (or of Exchanged Shares, if any) issued and outstanding; and (iii) at least 50% of the class of GM Class E Stock (or of the Exchanged Shares, if any) issued and outstanding are held by parties independent of GM. If as of October 1, 2003, or any date thereafter, all shares of GM Class E Stock held by the Hourly Plan are, or previously have been, exchanged or redeemed for, or converted into, securities that are or become Non-employer Securities, - 41 - 48 then the requirements of this section 7(a) shall cease to apply as of such date. (b) General Rules Regarding Sold Stock Credit Balance. (i) Except as provided in sections 7(b)(ii) and (iii) of this Agreement, the amount of any Stock Credit Balance that becomes available pursuant to sections 4(c), 4(d), 5, or 6 of this Agreement is limited to the Sold Stock Credit Balance. (ii) Notwithstanding section 7(b)(i) of this Agreement, if, (A) the lesser of the Contributed Value of the Contributed Shares (or Exchanged Shares that are Employer Securities) then held by the Hourly Plan (plus interest at the Funding Interest Rate), or the Then-Current Fair Market Value of the Contributed Shares (or Exchanged Shares that are Employer Securities, if any) then held by the Hourly Plan; plus (B) the Then-Current Fair Market Value of other Employer Securities then held by the Hourly Plan; minus (C) the Then-Current Fair Market Value of other Employer Securities then held by the Hourly Plan which securities the Labor Secretary permits to be excluded pursuant to his or her authority under ERISA section 408, falls within the ERISA Limits, and the Contributed Shares (or Exchanged Shares that are Employer Securities) are qualifying - 42 - 49 employer securities within the meaning of sections 407(d)(5) and 407(f) of ERISA (determined without regard to other Employer Securities to the extent permitted to be excluded by the Labor Secretary pursuant to his or her authority under ERISA section 408) then the amount of the Stock Credit Balance available under sections 4(c), 4(d), 5 or 6 of this Agreement shall be limited to the Sold Stock Credit Balance plus the Stock Credit Balance attributable to 75% of the Unsold Contributed Shares (or of such Exchanged Shares, if any, that are Employer Securities still held by the Hourly Plan). (iii) Notwithstanding section 7(b)(i) of this Agreement, if shares of GM Class E Stock have been exchanged or redeemed for, or converted into, securities that are or become Non-employer Securities, then the amount of the Stock Credit Balance available for use, subject to the limitations of sections 4(c), 4(d), 5, or 6 of this Agreement, shall be the Sold Stock Credit Balance plus the Stock Credit Balance attributable to 75% of the Exchanged Shares that are Non-employer - 43 - 50 Securities and still held by the Hourly Plan, provided that the total value of the Stock Credit Balance attributable to unsold Exchanged Shares that are Non-employer Securities and made available under this section 7(b)(iii) shall not exceed 10% of the Then-Current Fair Market Value of the Hourly Plan's assets. (c) Sold Stock. When the Hourly Plan sells Contributed Shares or Exchanged Shares, then the amount of the available Stock Credit Balance attributable to such shares shall be adjusted to the Value Received upon the sale of such shares if the Value Received is less than the Contributed Value of such shares plus interest at the Funding Interest Rate. If the Value Received upon the sale of such shares is greater than the Contributed Value of such shares plus interest at the Funding Interest Rate, then the amount of the available Stock Credit Balance attributable to such shares shall not be adjusted. Nothing in this section 7(c) shall affect creation or amortization of actuarial gain or loss bases under section 302 of ERISA and section 412 of the Code. (d) Unsold Stock. If an amount of the Stock Credit Balance related to Unsold Shares is taken into account in determining the amount required to be contributed for a Plan Year, then the amount of the available Stock Credit Balance - 44 - 51 attributable to each such share of Unsold Shares, if any, shall equal the lesser of (i) the Contributed Value of such share plus interest computed at the Funding Interest Rate, and (ii) the Adjusted Fair Market Value of the share as of the date the Credit Balance is taken into account. If GM utilizes the available Stock Credit Balance associated with any Unsold Share, and such Share is later sold and the Value Received for such Share is less than the available Stock Credit Balance (determined pursuant to the preceding sentence of this section 7(d)) that was taken into account for that share, then an amount of the remaining available Stock Credit Balance equal to any loss (offset by any unamortized gains related to any Contributed Shares or Exchanged Shares that have been sold by the Hourly Plan) which has not been previously amortized shall become unavailable and shall remain so until the first day of the 2003 Plan Year. For this purpose only, gains shall be limited to realized stock appreciation and dividends paid. Nothing in this section 7(d) shall affect creation or amortization of actuarial gain or loss bases under section 302 of ERISA and section 412 of the Code. (e) Independent Fiduciary. The Independent Fiduciary shall have exclusive control over the Contributed Shares and the Exchanged Shares, if any. The Named Fiduciary may replace the Independent Fiduciary with a successor - 45 - 52 independent fiduciary if the successor independent fiduciary is acceptable to PBGC in PBGC's sole discretion. A proposed successor independent fiduciary is deemed acceptable to PBGC if (i) PBGC does not notify the Named Fiduciary in writing of PBGC's rejection of the proposed successor independent fiduciary within 30 days after PBGC receives from the Named Fiduciary a writing proposing that successor independent fiduciary and (ii) PBGC does not deliver to the Named Fiduciary a writing stating its reason(s) for rejecting the proposed successor independent fiduciary within 15 days after notifying the Named Fiduciary of the rejection. GM and the Named Fiduciary shall use their best efforts to maintain the confidentiality of any such written statement of reasons provided by PBGC. - 46 - 53 SECTION 8: ENFORCEMENT OF CONTRIBUTION CREDIT BALANCE RESTRICTIONS If PBGC determines that the Contribution Credit Balance restrictions in sections 4 through 7 of this Agreement have been violated, PBGC's sole recourse shall be as follows: (a) Notice of Alleged Violation. PBGC shall first serve upon GM a written notice specifying the nature and extent of GM's alleged violation of this Agreement's Contribution Credit Balance restrictions for a Plan Year. PBGC's notice shall include a certification signed by an enrolled actuary specifying the manner and amount by which, in that actuary's opinion, GM has violated the Agreement's credit balance restrictions. The actuary may be an employee of the PBGC or an outside actuary. With respect to the 1994, 1995, 1996, 1997 and 1998 Plan Years, the notice described in this section 8(a) must be delivered to GM no later than one year from the date PBGC receives, with respect to the Plan Year for which the alleged violation occurs, the information described in sections 13(b), 13(c) and 13(f) of this Agreement, and to the extent applicable, the information described in section 13(a) of this Agreement. With respect to the 1999 Plan Year and subsequent Plan Years, the notice described in this section 8(a) must be delivered to GM no later than two years from the date PBGC receives, with respect to the Plan Year for which the alleged violation - 47 - 54 occurs, the information described in sections 13(b), 13(c) and 13(f) of this Agreement, and to the extent applicable, the information described in section 13(a) of this Agreement. If GM elects to defray additional required funding in whole or in part by drawing down the credit balance as provided in section 3(b)(v) of this Agreement, the one- or two-year period described above that is applicable to the Plan Year at issue shall not begin to run earlier than the date on which PBGC received the notice or revised notice under section 13(f), as provided in section 3(b)(v) of this Agreement. If no notice is delivered by PBGC with respect to a Plan Year within the applicable one- or two-year period specified above, then PBGC shall be estopped forever from asserting or claiming that GM has violated the Agreement's Contribution Credit Balance restrictions applicable to such Plan Year. PBGC shall be estopped pursuant to the preceding sentence with respect to any alleged violation of the Agreement's Contribution Credit Balance restrictions for a Plan Year and, to the extent (if any) that such alleged violations have an effect on the determination of charges or credits to the Funding Standard Account in future Plan Years, from claiming or seeking any monetary relief with respect to such effects in future Plan Years; provided, however, that if an alleged violation is repeated anew in a subsequent Plan Year, PBGC may pursue relief under this section 8 with respect to such - 48 - 55 new violation within the one- or two-year period that applies to such subsequent Plan Year. (b) 60-Day Period. For a period of 60 days following PBGC's notice under section 8(a) of this Agreement, PBGC and GM shall attempt in good faith to resolve the issue raised in PBGC's notice. If PBGC and GM do not resolve the issue as provided in the preceding sentence, PBGC, on or after the 61st day (or the fifth business day, if section 3(b)(v) applies) following PBGC's notice under section 8(a), may file an action in an appropriate court seeking to enforce this Agreement with respect to the issue in dispute. PBGC agrees that, in any such action, it shall not seek a money judgment against GM but may seek any other form of relief, including without limitation, injunctive relief directing GM to pay money into the Plan. GM retains any and all defenses and claims it may have in response to any such PBGC action. (c) Collateral. If, pursuant to section 8(b) of this Agreement, PBGC commences a lawsuit respecting GM's alleged violation of the Contribution Credit Balance restrictions in sections 4 through 7 of this Agreement, and if PBGC alleges in its complaint that there remains in dispute between PBGC and GM an amount (the "Disputed Amount") that exceeds $300 million, GM shall provide security for the benefit of the Hourly Plan and enforceable by PBGC, as follows: - 49 - 56 (i) Except to the extent its obligation to post collateral is excused under subparagraph (vii) below, GM shall, within 60 days following the commencement of such lawsuit, post collateral reasonably acceptable to PBGC (the "Section 8 Collateral"). The value of the Section 8 Collateral shall be not less than the Disputed Amount. On or before the 61st day following commencement of such lawsuit, GM shall provide PBGC with a certification from the custodian as to the amount and type(s) of collateral posted. (ii) The following unencumbered security shall automatically be acceptable to the PBGC as Section 8 Collateral: 1. U.S. Treasury Securities; 2. Securities issued by U.S. Government Agencies; 3. Securities issued by municipalities in the U.S. with a credit rating of not less than Aa, MIG-1/SP-1; 4. Securities issued by domestic and foreign corporations (other than GM or members of GM's Controlled Group) with a maturity of less than two years with a credit rating of not less than A-1/P-1 and A/A2; 5. Cash (i.e., certificates of deposit (CDs) and time deposits (TDs) of domestic and overseas-based banks, bankers acceptances and Bank Holding Company Commercial Paper) invested with domestic banks and U.S. subsidiaries of foreign-based banks regulated by the Federal Reserve having a Thomson Bankwatch Inc. credit rating of not less than B; and 6. Letter of credit/performance bond provided by domestic banks and U.S. subsidiaries of foreign- based banks regulated by the Federal Reserve with a Thomson Bankwatch credit rating of not less than B. (iii) If for any reason GM elects not to satisfy the requirements of section 8(c)(i) by posting collateral in a form described in sections 8(c)(ii)(1) - (6) above, GM - 50 - 57 and PBGC shall negotiate other forms of collateral that are reasonably acceptable to PBGC. (iv) The Section 8 Collateral shall be held in the U.S. by a custodian, if applicable, with a credit rating of not less than A-1/P-1 or A/A2. (v) Every month after the initial posting of the collateral referred to in sections 8(c)(ii)(1)-(4), GM will cause either the custodian holding the security or GM's independent auditor (currently Deloitte & Touche) to identify and value such collateral and, if applicable, to specify the credit rating of the issuer of the collateral. If the value of collateral provided declines below the Disputed Amount, GM within five business days shall provide additional collateral sufficient to bring the value of all Section 8 Collateral to an amount not less than the Disputed Amount. In addition, if any collateral posted by GM fails to meet the credit rating requirements of this section 8(c) of the Agreement, GM shall replace such collateral within 5 business days after GM receives notice from the custodian holding the collateral or from GM's independent auditor that such collateral fails to meet such credit rating requirements. GM will direct the custodian or independent auditor (A) to provide to PBGC copies of all notices under this section 8(c)(v) at the same time they are provided to GM and (B) to confirm the amount and type(s) of any additional or substituted collateral. (vi) If GM fails to comply with a Final Order directing GM to satisfy the Disputed Amount (or a greater or a lesser amount), the PBGC may enforce the Hourly Plan's interest in the Section 8 Collateral up to the amount specified in the Final Order. If the court hearing PBGC's action enters a Final Order disallowing PBGC's claim in whole or in part, GM shall thereafter be obligated to provide Section 8 Collateral only in an amount equal to the amount of PBGC's claim, if any, that is allowed by the court and any Collateral in excess of that amount shall immediately be released. (vii) The Section 8 Collateral, if any, that GM is required to post at any time shall be reduced by $1 for each $1 of credit balance in the Hourly Plan's Funding Standard Account at that time, including the Contribution Credit Balance that PBGC reasonably agrees is available at the time, provided, however, that the required amount of Section 8 Collateral shall not be reduced by any portion of the Contribution Credit - 51 - 58 Balance that is unavailable as a result of the Contribution Credit Balance restrictions in Sections 4 through 7 of this Agreement. (d) The provisions of this section 8 apply solely to a PBGC determination that the provisions of sections 4 through 7 of this Agreement have been violated. Nothing in this section shall limit either party's rights and remedies with respect to a violation of any other provision of this Agreement. - 52 - 59 SECTION 9: RELEASES AND COVENANTS NOT TO SUE (a) Initial Release and Covenant Not to Sue Respecting EDS Releasees and GM. Within ten days after PBGC is notified by GM that GM has satisfied the Extraordinary Contribution Provision, and provided that GM has satisfied the Extraordinary Contribution Provision, PBGC shall execute and deliver to GM a Release and Covenant Not to Sue in the form of Appendix R1 hereto. (b) Initial Release and Covenant Not to Sue Respecting EDS Transferees and GM. Within ten days after PBGC is notified by GM that GM has satisfied the Extraordinary Contribution Provision, and provided that GM has satisfied the Extraordinary Contribution Provision, PBGC shall execute and deliver to EDS a Release and Covenant Not to Sue in the form of Appendix R1 hereto. (c) PBGC's Obligation to Deliver Specific Releases and Covenants Not to Sue. (1) Subject to any suspension of PBGC's obligations pursuant to section 9(g) of the Agreement, and provided that GM has satisfied the Extraordinary Contribution Provision, PBGC shall have an obligation to do either (A) or (B) below: (A) deliver to an escrow agent selected as provided for in section 9(d)(v) of the Agreement, within two business days of the expiration of the 21-calendar-day period after the date of receipt by PBGC of the items - 53 - 60 described in paragraph (2) below, that quantity of executed Releases and Covenants Not to Sue in the form of appendices R2 and R3 to the Agreement (or R4 and R5 if GM elects, in its sole discretion, to resolve an Excessive Transfer by implementing the alternative described in section 9(f)(i)(D)(i) or (ii) of the Agreement, provided that only R4 shall be delivered in the event that section 9(f)(i)(D)(iii) applies) as may reasonably be requested by GM at the time. The escrow agent shall be instructed to deliver the executed Releases and Covenants Not to Sue to GM and EDS in accordance with and subject to the provisions of section 9(c)(3) of the Agreement; or (B) deliver to GM a notice of disagreement in the form described in section 9(d)(iii) of the Agreement within the 21-calendar-day period after the date of receipt by PBGC of the items described in paragraph (2) below. If PBGC delivers a notice of disagreement, GM shall have the right, in its sole discretion, to (i) initiate an action against PBGC to enforce PBGC's obligation to deliver the executed Releases and Covenants Not to Sue described in this section 9(c), and/or (ii) alter the terms of the transaction or other factors and resubmit to PBGC the relevant certificates and statements referred to in (2) below, whereupon PBGC shall be obligated, within ten calendar days of the receipt of such items, to either deliver to the escrow agent such executed Releases and Covenants Not to Sue, or deliver to GM a further notice of disagreement. Subject to any suspension of PBGC's obligations pursuant to section 9(g) of the Agreement, if PBGC pursues neither option (A) nor option (B) above within the time allowed, or if PBGC pursues option (B) and a Qualified EDS Transaction occurs, then PBGC shall have an obligation, enforceable under this Agreement, to deliver to GM and EDS the executed Releases and Covenants Not to Sue in the forms of appendices R2 and R3 to - 54 - 61 the Agreement (or R4 and R5 if GM elects, in its sole discretion, to resolve an Excessive Transfer by implementing the alternative described in section 9(f)(i)(D)(i) or (ii) of the Agreement, provided that only R4 shall be delivered in the event that section 9(f)(i)(D)(iii) applies) within two business days after PBGC's receipt of the information described in section 9(c)(3) below. (2) The items described in this paragraph (2) are the following: (A) A certificate in the form of Appendix Q hereto stating GM's conclusion that a transaction or proposed transaction involving EDS constitutes or will constitute a Qualified EDS Transaction. (B) A statement from each of the Hourly Plan's master trustees (currently Bankers Trust, Mellon Bank and Chase Manhattan) and from the Independent Fiduciary showing the fair market value of Plan assets under their respective control, provided that together the statements shall set forth the fair market value of all Hourly Plan assets. Separate values shall be shown for assets that constitute Employer Securities and for assets that constitute Contributed Shares or Exchanged Shares that are Employer Securities. If the certificate is furnished at least 15 calendar days after a month's end, the statements will show the fair market value as of the end of such month. If the certificate is furnished fewer than 15 calendar days after a month's end, the statements will show fair market value as of the end of the month immediately preceding such month. (C) A statement from a GM officer or attorney indicating that EDS is no longer a member of GM's Controlled Group or will cease to be a member of GM's Controlled Group if and when - 55 - 62 the proposed Qualified EDS Transaction is consummated, together with a description of how the transaction qualifies or will qualify as a Qualified EDS Transaction. (D) A list of each Material Transfer (if any) effected through the date of GM's statement, together with documentation that reasonably identifies the date, nature and fair value of each such Material Transfer. (E) A statement from a GM officer certifying that the list of each Material Transfer (if any) provided to PBGC pursuant to (D) above is complete and accurate and certifying either (i) that there has been no Excessive Transfer, as that term is defined in section 9(e) below, or (ii) if there has been an Excessive Transfer, that such Excessive Transfer has been or will be resolved in accordance with the provisions of section 9(f) below, together with a description of how such resolution was or will be achieved. (F) A statement from an EDS officer certifying that the list of each Material Transfer (if any) provided to PBGC by GM is complete and accurate. (G) A report from GM's independent auditor describing the procedures, consistent with Appendix T hereto, that it has performed, and its findings as a result thereof, in order to assist PBGC in evaluating any list furnished to PBGC by GM pursuant to item (D) above. The report will be based upon periodic, timely reviews as determined by the independent auditor in its professional discretion. (H) Copies of the principal executed documents (e.g., memoranda of understanding or definitive agreements) that formed or will form the basis of the EDS transaction. (I) A statement from a GM officer certifying that neither GM nor any GM Subsidiary intends to effect (or complete) any Material Transfers from the last date included on the list described in item (D) above through the Transaction Date, or if any Material Transfer is anticipated, a projected date, nature and - 56 - 63 fair value for each such anticipated Material Transfer. (3) If PBGC has delivered executed Releases and Covenants Not to Sue to the escrow agent, the escrow agent shall be instructed to deliver the executed Releases and Covenants Not to Sue to GM and EDS immediately upon the escrow agent's receipt of an executed certificate in the form of Appendix E1 hereto from an officer or attorney for GM certifying that a Qualified EDS Transaction has occurred and receipt of a written statement in the form of Appendix E2 from an officer or attorney for PBGC authorizing delivery of the Releases and Covenants Not to Sue. Subject to any suspension of PBGC's obligations pursuant to section 9(g) of this Agreement, PBGC shall be required to deliver such written statement to the escrow agent within two business days after the last date determined under (i) and (ii)(A) below, or seven business days after the last date determined under (i) and (ii)(B) below, whichever is applicable; provided, however, that the seven business days shall be fourteen calendar days if any of the Material Transfers identified under (ii)(B)(I) below had not been identified in the statement furnished to PBGC under section 9(c)(2)(I) above. In the event PBGC has delivered to the escrow agent executed Releases and Covenants Not to Sue in the forms of appendices R2 and R3 to the Agreement, and GM subsequently elects, in its sole discretion, to resolve an Excessive - 57 - 64 Transfer by implementing the alternative described in section 9(f)(i)(D)(i) or (ii) of the Agreement, PBGC shall deliver executed Releases and Covenants Not to Sue in the form of appendices R4 and R5 (provided that only R4 shall be delivered in the event that section 9(f)(i)(D)(iii) of the Agreement applies) to GM and EDS within the time specified above for PBGC to deliver a written statement to the escrow agent, and PBGC shall instruct the escrow agent to return the executed Releases and Covenants Not to Sue in the form of appendices R2 and R3 to PBGC. (i) The date on which GM provides the PBGC with either: (A) certified copies of corporate documents or records evidencing that EDS is no longer a member of GM's Controlled Group and that all shares of GM Class E Stock held by the Hourly Plan have been exchanged or redeemed for, or converted into, shares or securities that are Non-employer Securities with respect to the Hourly Plan as of a date on or after the Transaction Date (but no more than 120 days after the Transaction Date); or (B) certified copies of corporate documents or records evidencing that EDS is no longer a member of GM's Controlled Group, together with unaudited reports from each of the master trustees and the Independent Fiduciary showing that as of a date on or after the Transaction Date (but no more than 120 days after the Transaction Date) either -- (I) the Fair Market Value of Contributed Shares or Exchanged Shares that constitute Employer Securities that are held by the Hourly Plan represents no more than 2.5% of the Then- Current Fair Market Value of - 58 - 65 the Hourly Plan's assets as reflected in such reports, or (II) no more than 5% of the Then-Current Fair Market Value of the Hourly Plan's assets as reflected in such reports consists of Employer Securities; (ii) the date on which GM provides the PBGC with (A) or (B) below, whichever is applicable: (A) a statement from a GM officer and a statement from an EDS officer affirming that no Material Transfers were effected from the date of the certificate described in section 9(c)(2)(E) of the Agreement through the Transaction Date; or (B) the following items: (I) a list of each Material Transfer effected (or completed) since the date of the certificate described in section 9(c)(2)(E) of the Agreement and through the Transaction Date; (II) a statement from a GM officer certifying that the lists of each Material Transfer provided by GM under (I) above and under section 9(c)(2)(D) together constitute a complete and accurate list of each Material Transfer; (III) a statement from a GM officer certifying either that there has been no Excessive Transfer, as that term is defined in section 9(e) below, or if there has been an Excessive Transfer, that such Excessive Transfer has been resolved in accordance with the provisions of section 9(f) below, together with a description of how such resolution was achieved and supporting documentation; and (IV) a statement from an EDS officer certifying that the list(s) of each Material Transfer (if any) provided to PBGC is complete and accurate. - 59 - 66 (d) Certification Process. Provided that GM has satisfied the Extraordinary Contribution Provision, and without conditioning or otherwise limiting PBGC's obligations under sections 9(a), 9(b) and 9(c) of this Agreement, GM may in its sole discretion obtain certification that a proposed transaction constitutes, or will constitute, a Qualified EDS Transaction through the following certification process: (i) GM Initiates Process. At least 60 calendar days before the date on which GM estimates it will consummate a proposed Qualified EDS Transaction (or at such other time as the parties may mutually and reasonably agree), GM shall deliver to PBGC the certificates, statements and reports listed in section 9(c)(2)(A) through (I) of the Agreement. (ii) PBGC's Right to Inspect Documents. At any time during the 14 calendar day period beginning immediately upon its receipt of the material described in section 9(d)(i) of this Agreement, PBGC may request that GM produce for inspection more current statements of the type described in section 9(c)(2)(B) of this Agreement showing asset values as of the most recent month's end, to the extent such additional statements have become available under the time constraints set forth in section 9(c)(2)(B). If PBGC timely makes such a request, GM shall be obligated to produce such statements for PBGC's inspection within 10 calendar days of such request. (iii) PBGC's Notice of Disagreement with GM. If PBGC disagrees with GM's determination that a transaction proposed by GM constitutes or will constitute a Qualified EDS Transaction, PBGC shall deliver to GM a written notice stating the reason(s) for such disagreement, identifying the specific facts and sources of such facts underlying the reason(s), and identifying the changes that, in PBGC's view, would be required to eliminate PBGC's disagreement and the documentation that, in PBGC's view, would be required to establish that such changes had occurred. Such notice shall be delivered within 21 calendar days after GM provides - 60 - 67 all of the material described in section 9(d)(i) of the Agreement. (iv) Options Available to GM if PBGC Issues Notice of Disagreement. If PBGC timely delivers a written notice of its disagreement as described in section 9(d)(iii), GM shall nevertheless have the right to do either or both of the following: (A) alter the terms of the proposed transaction or other relevant factors, and resubmit its certificate and statements as provided in section 9(d)(i) of this Agreement, together with documentation of the changes made, whereupon PBGC shall be obligated to follow the procedures and timing requirements set forth in sections 9(d)(iii) with respect to such certificate and statements, except that the 21-day period described in section 9(d)(iii) shall be shortened to 10 days; and (B) consummate the proposed transaction. In either case, both parties shall be subject to their respective obligations under this Agreement and, to the extent not inconsistent with this Agreement, under applicable law, and both parties shall retain their respective rights and remedies under this Agreement and, to the extent not inconsistent with this Agreement, under applicable law. (v) Delivery of Releases to Escrow Agent. If no written notice of disagreement is delivered to GM pursuant to section 9(d)(iii) of this Agreement (or if a notice of disagreement has been delivered to GM and GM thereafter alters the terms of the proposed transaction or other relevant factors such that no subsequent notice of disagreement is delivered to GM pursuant to section 9(d)(iii) of the Agreement), then, subject to any suspension of PBGC's obligation pursuant to section 9(g) of the Agreement, PBGC shall, not later than two business days after the applicable 21- or ten-day period under section 9(d)(iii) or section 9(d)(iv)(A) expires, execute and deliver to an escrow agent that is mutually and reasonably acceptable to both GM and PBGC, that quantity of duly executed Releases and Covenants Not to Sue in the form of - 61 - 68 Appendices R2 and R3 to this Agreement (or R4 and R5 if GM elects to resolve an Excessive Transfer by implementing in its sole discretion the alternative described in section 9(f)(i)(D)(i) or (ii) of the Agreement, provided that only R4 shall be delivered in the event that section 9(f)(i)(D)(iii) applies) as may reasonably be requested by GM at the time. (vi) Delivery of Releases to GM and EDS Through Escrow Agent. If PBGC has delivered executed Releases and Covenants Not to Sue to the escrow agent, the escrow agent shall be instructed to deliver the executed Releases and Covenants Not to Sue to GM and EDS in accordance with and subject to the provisions of section 9(c)(3) of this Agreement. (e) Limitation on Excessive Transfers. (1) In the event of any Material Transfers that have an aggregate fair value, on the date(s) of such Material Transfer(s), of more than $3 billion ("Excessive Transfer"), GM shall resolve the Excessive Transfer or waive PBGC's obligations as provided under section 9(f) of this Agreement. No payments or transfers other than Material Transfers shall be considered in determining whether an Excessive Transfer has occurred. Further, none of the following Material Transfers shall be considered in determining whether there is an Excessive Transfer, nor shall any such Material Transfers be taken into account in applying the $3 billion aggregate limit set forth in the first sentence of this section 9(e): (A) any Material Transfer of assets or operations (but not stock) to the extent it is in exchange for fair value; (B) any Material Transfer of stock of a corporation that is not in GM's Controlled Group at the time of any - 62 - 69 such Material Transfer to the extent it is in exchange for fair value; (C) any Material Transfer of stock of a corporation that is a member of GM's Controlled Group at the time of such Material Transfer and that remains a member of GM's Controlled Group immediately after such Material Transfer to the extent it is in exchange for fair value; (D) any Material Transfer that is effected to implement a strategic acquisition by EDS pursuant to a joint plan of GM and EDS in which GM acquires either the stock, assets, operations, or any combination thereof, of a corporation not theretofore in GM's Controlled Group, in exchange for consideration consisting of either newly issued securities or property (including cash or stock of any type), or any combination thereof, and contributes to EDS in conjunction therewith the stock, assets and operations so acquired in exchange for the aforementioned consideration; and (E) any Material Transfer to the extent that it is made with PBGC's consent. The proceeds received by GM or a GM Subsidiary in connection with any Material Transfer of stock of a corporation that was a member of GM's Controlled Group immediately before such Material Transfer and that is not a member of GM's Controlled Group immediately after the Transaction Date shall be applied to reduce the amount of any other Material Transfers for purposes of determining whether there is an Excessive Transfer under this section 9(e)(1) or for the purposes of resolving an Excessive Transfer under section 9(f)(i). - 63 - 70 (2) To the extent that EDS and/or any of the EDS Subsidiaries makes payments or transfers of assets, operations or stock to or into GM and/or any GM Subsidiary in exchange for less than fair value, whether by dividends or otherwise (but excluding regular quarterly dividends not in excess of regular quarterly dividends paid to GM's Class E Stockholders), at any time on or after the Effective Date through the Transaction Date, such payments or transfers by EDS and/or any of the EDS Subsidiaries shall be applied to reduce the amount of Material Transfer(s) (if any) for purposes of determining whether there is an Excessive Transfer and applying the $3 billion aggregate limit described in the first sentence of this section 9(e) of the Agreement. Notwithstanding the preceding sentence, no such payments or transfers by EDS and/or any of the EDS Subsidiaries shall be applied to reduce the amount of a Material Transfer consisting of stock of any single GM Subsidiary that has a fair value greater than $3 billion if that GM Subsidiary is not a member of GM's Controlled Group and is a member of EDS's Controlled Group on the Transaction Date; provided however, that such payments or transfers shall be applied to reduce the amount of all other Material Transfer(s) (if any). (3) For purposes of this section 9 of the Agreement and for purposes of the definition of Material Transfer, a - 64 - 71 payment or transfer is conclusively presumed to be in the ordinary course of business of GM or EDS if it is-- (A) made under or in connection with the Master Agreement between GM and EDS (including any amendments or successor agreements thereto), or (B) made under or in connection with any other contracts or arrangements entered into by GM or EDS for the provision of goods or services between or among GM or any GM Subsidiaries and EDS or any EDS Subsidiaries. In addition, a payment or transfer is in the ordinary course of business of GM or EDS if it is determined in good faith to be in the ordinary course of business of GM or EDS consistent with reasonable business judgment. (4) In the case of any payment or transfer of assets, operations or stock, including without limitation any Material Transfer(s), if GM's Board of Directors has determined that fair value was received in exchange therefor based upon the opinion of an investment banking firm that is among the ten largest such firms doing business in the United States (determined by combining the two most recent annual ranking tables published by Securities Data Company showing the dollar value of completed transactions involving merger and acquisition targets in the United States), such determination of fair value shall conclusively be presumed to be for fair value for purposes of this section 9 of the Agreement. - 65 - 72 (f) Resolution or Waiver in the Event of an Excessive Transfer. In the event of an Excessive Transfer, as defined in and determined in accordance with section 9(e) of this Agreement, GM shall, in its sole discretion, either resolve the Excessive Transfer by implementing, as appropriate, one or more of the alternatives set forth in section 9(f)(i) below such that the aggregate fair value of the unresolved Material Transfers is reduced below $3 billion, or waive, pursuant to section 9(f)(ii) below, PBGC's obligation to execute and/or deliver Specific Releases and Covenants Not to Sue under sections 9(c) and 9(d) of the Agreement. Solely with regard to section 9(f)(i), the unresolved portion of a Material Transfer shall be taken into account in determining whether an Excessive Transfer has been resolved even if the unresolved portion of such Material Transfer is less than the $50 million threshold set forth in the definition of Material Transfer. Further, GM retains sole discretion as to the selection and implementation of one or more of the applicable alternatives; provided, however, that in the event of a Material Transfer consisting of the stock of any single GM Subsidiary if such GM Subsidiary has a fair value greater than $3 billion, if immediately after the Transaction Date that GM Subsidiary is not a member of GM's Controlled Group and is a member of EDS's Controlled Group, the only alternatives available to GM (without PBGC's consent) to resolve such Material Transfer shall be either a return of - 66 - 73 such transferred GM Subsidiary to the GM Controlled Group or provision by PBGC of alternative Releases and Covenants Not to Sue under section 9(f)(i)(D)(ii) and 9(f)(i)(D)(iii) below that expressly provide that the EDS Releasees and EDS Transferees do not include such transferred GM Subsidiary, and the EDS Transferees shall receive no Release and Covenant Not to Sue. (i) Resolutions Available. The alternatives available to GM to address individual Material Transfer(s) and thereby to resolve an Excessive Transfer are as follows: (A) GM may cause assets and/or operations to be returned to GM or the GM Subsidiary (or enter into a binding agreement to cause assets and/or operations to be returned). (B) GM may cause some or all of the transferred stock that made up one or more of the Material Transfer(s) to be returned to GM or the GM Subsidiary (or enter into a binding agreement to cause some or all of such stock to be returned). (C) GM may post collateral in a form reasonably acceptable to PBGC having value not less than the Applicable Percentage of the aggregate fair value of any Material Transfer(s), or portions thereof, that GM elects to resolve under this section 9(f)(i)(C). This collateral shall only be available to satisfy any claim that PBGC establishes under section 4062 of ERISA if the Hourly Plan is terminated under Title IV of ERISA within five years after the Transaction Date. If the Hourly Plan has not terminated under Title IV of ERISA within the period specified above, the collateral shall be released and returned to GM. If, before the Transaction Date, section 4069(a) of ERISA is amended to specify a finite number of years other than five, such other number of years shall be substituted wherever "five" appears in this paragraph (C), provided, however, that in all - 67 - 74 events such period shall run continuously from the Transaction Date. (D) GM may elect by notifying PBGC in writing to receive alternative Releases and Covenants Not to Sue in the forms of Appendices R4 and R5 hereto. Such alternative Releases and Covenants Not to Sue shall expressly provide that the EDS Releasees and EDS Transferees are released from the GM Pension Liability, if any, except: (i) if GM elects to resolve Material Transfers, or portions thereof, under this section 9(f)(i)(D)(i), the EDS Releasees shall receive a release in the form of Appendix R4 that does not release the EDS Releasees from potential liability in an amount not to exceed the Applicable Percentage of the aggregate fair value of the Material Transfers, or portions thereof, that GM elects to resolve under this section 9(f)(i)(D)(i) and the EDS Transferees shall receive a release of all GM Pension Liability in the form of Appendix R5; and/or (ii) if GM elects to resolve Material Transfers or portions thereof under this section 9(f)(i)(D)(ii), the EDS Releasees shall receive a release in the form of Appendix R4 that excludes from the group of EDS Releasees that are released from the GM Pension Liability any corporations that were included in a Material Transfer that GM elects to resolve under this section 9(f)(i)(D)(ii), and the EDS Transferees shall receive a release of all GM Pension Liability in the form of Appendix R5. (iii) Notwithstanding items (i) and (ii), above, if there has been a Material Transfer consisting of stock of any single GM Subsidiary that has a fair value greater than $3 billion and that is no longer a member of GM's Controlled Group and is a member of EDS's Controlled Group on the Transaction Date, the EDS Releasees shall receive a release in the form of Appendix R4 that excludes such GM Subsidiary from the group of EDS Releasees that are released and the EDS Transferees shall receive no release. - 68 - 75 Any potential liability as to an EDS Releasee or EDS Transferee, shall attach, if at all, only if the Hourly Plan is terminated under Title IV of ERISA within five years after the Transaction Date and only if PBGC establishes that the EDS Releasees or EDS Transferees are otherwise liable therefor under Title IV of ERISA without regard to this Agreement. In this regard, the EDS Releasees, EDS Transferees and any such corporations referenced in (ii) above retain all claims, rights and defenses available under law. Such alternative Releases and Covenants Not to Sue shall be delivered in lieu of the Releases and Covenants Not to Sue in the forms of Appendices R2 and R3 hereto. If, before the Transaction Date, section 4069(a) of ERISA is amended to specify a finite number of years other than five, such other number of years shall be substituted wherever "five" appears in this paragraph (D), provided, however, that in all events such period shall run continuously from the Transaction Date. (E) GM may take such other action as PBGC reasonably agrees is sufficient to resolve the Excessive Transfer. (ii) Waiver of PBGC's Obligation. In lieu of implementing one or more of the available alternatives set forth in section 9(f)(i) above, GM may elect, by notifying PBGC in writing, to waive PBGC's obligation to execute and/or deliver Specific Releases and Covenants Not to Sue under section 9(c) and 9(d) of the Agreement. (iii) PBGC's Right to Terminate. Except as expressly provided in this section 9 of the Agreement and/or the Releases and Covenants Not to Sue under section 9(f)(i)(D) of the Agreement, nothing in this Agreement shall preclude PBGC from exercising its rights - 69 - 76 under Title IV of ERISA, if any, with respect to any person if any single GM Subsidiary that has a fair value greater than $3 billion (other than a GM Subsidiary that is transferred in a Material Transfer described in section 9(e)(1)(D) of this Agreement) is not or will no longer be a member of GM's Controlled Group as a result of a Qualified EDS Transaction, provided that, if such GM Subsidiary is not a member of EDS's Controlled Group on the Transaction Date, GM shall have no obligation to resolve such Material Transfer under this section 9(f) if PBGC initiates or pursues an action to terminate any of the GM Pension Plans under section 4042 of ERISA, 29 U.S.C. Section 1342, or threatens or asserts an intention to pursue any such proceeding, or to seek any equitable relief by reason of such Material Transfer ("Termination Actions"). If GM proposes to PBGC in writing to resolve such Material Transfer under section 9(f)(i), and if PBGC does not within ten business days object in writing to GM's proposal and advise GM of its intention to initiate termination proceedings under section 4042 of ERISA, then PBGC shall thereafter be forever estopped from initiating or pursuing any Termination Actions as a result of such Material Transfer. For purposes of this paragraph (iii), an informal, unauthorized statement by a PBGC employee shall not be considered a Termination Action, provided that PBGC upon written request by GM - 70 - 77 notifies GM in writing immediately that it disavows such statements and disclaims any intention to initiate or pursue Termination Actions as a result of the Material Transfer. (g) Suspension of PBGC's Obligation to Deliver Specific Releases and Covenants Not to Sue. The obligations of PBGC to deliver the executed Releases and Covenants Not to Sue as required and described by sections 9(c)(1)(A) and 9(d)(v) of this Agreement, and/or to deliver the written statement as required and described in sections 9(c)(3) and 9(d)(vi) of this Agreement, shall automatically be suspended if PBGC timely initiates the procedure described in section 9(h) below. Such obligations shall remain suspended until the earlier of: (A) the date on which there is a final and binding determination by the investment banking firm under section 9(h) below that there is no Excessive Transfer that remains unresolved; or (B) if there is a final and binding determination by the investment banking firm under section 9(h) below that is within $250 million of the GM List as described in section 9(h)(iii) below, the date that GM resolves any such remaining Excessive Transfer; or (C) if there is a determination by the investment banking firm under section 9(h) below that is more than $250 million greater than the GM List as described in section 9(h)(iii) below, either (I) the date that GM resolves any such remaining Excessive Transfer, or (II) the date that a Final Order is entered in any litigation commenced under section 9(h)(iv) below holding that no Excessive Transfer remains unresolved; or - 71 - 78 (D) the date on which the investment banker's report is due under section 9(h)(v) if, by such date, no report regarding the range of fair values for each Material Transfer identified for review by PBGC as provided under section 9(h) below has been provided to GM and PBGC. Notwithstanding the preceding sentence, if PBGC timely initiates arbitration or litigation as provided for in section 9(h)(vi) below, PBGC's obligations to deliver the executed Releases and Covenants Not to Sue as required and described by sections 9(c)(1)(A) and 9(d)(v) of this Agreement, and/or to deliver the written statement as required and described in sections 9(c)(3) and 9(d)(vi) of this Agreement, shall remain suspended until the date on which a final award is rendered by the arbitration panel under section 9(h)(vi) below, or a Final Order is entered in the litigation, whichever is applicable. (h) Procedures for Resolving Disputes Over Whether an Excessive Transfer Has Occurred. This section 9(h) of the Agreement sets forth the sole and exclusive procedure for addressing a dispute between GM and PBGC as to the amount of a Material Transfer in the event of an Excessive Transfer (including the extent to which any Excessive Transfer has been resolved pursuant to section 9(f)(i) of the Agreement) and any other matter arising under section 9(e) or 9(f) of the Agreement that PBGC wishes to dispute. - 72 - 79 (i) Determination By Nationally-Recognized Investment Banking Firm. If one or more of the Material Transfer(s) set forth on the list and updated lists furnished to PBGC pursuant to sections 9(c)(2)(D) and 9(c)(3)(ii)(B) of this Agreement has not been valued in accordance with section 9(e)(4) or PBGC disputes the fair value of a transaction that GM identifies to resolve an Excessive Transfer if that Material Transfer had not been valued in accordance with section 9(e)(4), and provided that the aggregate value of all the Material Transfer(s) as stated by GM on such list exceeds $3 billion, then PBGC may request that a nationally recognized investment banking firm named and selected under the procedures in section 9(h)(ii) below review and deliver a report setting forth its views on the range of fair value for each Material Transfer identified by PBGC as in dispute, to the extent such Material Transfer(s) are to be taken into account in determining whether an Excessive Transfer has occurred under section 9(e) above and/or remains unresolved under section 9(f)(i) above. Where a Material Transfer has been made in exchange for fair value conclusively determined under section 9(e)(4) of this Agreement, PBGC shall not dispute fair value reported by GM for such Material Transfer as determined in accordance with section 9(e)(4). (ii) Selection of Investment Banking Firm. The investment banking firm responsible for preparing the report under section 9(h) of the Agreement shall be selected by PBGC from among the ten largest such firms doing business in the United States determined by combining the two most recent annual ranking tables published by Securities Data Company showing the dollar value of completed transactions involving merger and acquisition targets in the United States. If, after a good-faith effort, PBGC is unable to engage a firm or firms that satisfies the requirements of the preceding sentence, PBGC shall select a firm or firms, acceptable to GM, from among nationally recognized and reputable investment banking firms that specialize in the largest mergers and acquisitions in the industry or industries within which the Material Transfer(s) at issue occurred. Upon written request by PBGC, GM shall notify PBGC as soon as practical of any relationship GM has with any such firm(s) that GM knows to be financially significant to such firm(s) and of any - 73 - 80 firm described in the preceding sentence that is not acceptable to GM. The investment banking firm selected under the procedure noted above shall be directed to report its independent professional view regarding the range of fair value attributable to each Material Transfer in dispute under sections 9(h)(i) of the Agreement, to the extent such Material Transfer is to be taken into account in determining whether an Excessive Transfer has occurred or remains unresolved under sections 9(e) and 9(f)(i) above. Such range of fair value shall be determined without giving effect to any possible interest of PBGC in such range of values being high or any possible interest of GM in such range of values being low. (iii) Effect of Determination. If the aggregate fair value, as determined by GM, of all of the Material Transfer(s) identified by PBGC for evaluation under (i) above ("Reviewed Material Transfers") is within the range of fair values for such Transfers as determined by the investment banking firm selected under (ii) above, then the fair value of each Reviewed Material Transfer shall be conclusively deemed to be the value as determined by GM (the "GM List"). If the aggregate fair value of all of the Reviewed Material Transfer(s) as determined by GM is within $250 million of the lowest aggregate value for such Transfers as determined by the investment banking firm, then the fair value of each Reviewed Material Transfer shall be conclusively deemed to be the lowest value as determined by the investment banking firm (the "Substitute List"). If the aggregate fair value of all of the Reviewed Material Transfer(s) as determined by GM is not within $250 million of the lowest aggregate value of all of the Reviewed Material Transfer(s) as determined by the investment banking firm, then the provisions of section 9(h)(iv) shall apply. The parties agree that the value conclusively deemed to be the value of each Reviewed Material Transfer pursuant to this section (iii) shall constitute a final and binding determination. In such circumstances, the parties expressly and knowingly waive any right they may have to seek judicial review of a determination of the GM List or the Substitute List (as applicable), and any other Material Transfers set forth on the list and updated list furnished to PBGC pursuant to 9(c)(2)(D) and 9(c)(3)(ii)(B)(I) of this Agreement as to which PBGC has not timely initiated the - 74 - 81 dispute resolution process under this section 9(h), pursuant to Title 9 of the United States Code or otherwise, and shall be forever estopped from seeking or claiming a right to seek judicial review of such GM List or Substitute List. (iv) Litigation. If the aggregate fair value of all of the Reviewed Material Transfer(s) as determined by GM is not within $250 million of the lowest aggregate fair value of all of the Reviewed Material Transfer(s) as determined by the investment banking firm, either PBGC or GM may file suit in an appropriate court for a determination as to the fair value of each Reviewed Material Transfer set forth on GM's List that is in dispute. The parties agree that the investment banking firm's report(s), together with any other fairness or valuation reports prepared by or on behalf of GM in connection with the Reviewed Material Transfer(s) at issue, shall be admissible into evidence in any such action and that the court may assign such weight to the report(s) as the court deems appropriate, but that no deference shall be accorded to the views of either party or any investment banking firm or other advisor. Notwithstanding the above, GM may elect to resolve any Excessive Transfer by resolving the Reviewed Material Transfers to the extent required using the investment banking firm's lowest fair value for each such Reviewed Material Transfer (a) at any time prior to the time at which GM files suit, (b) at any time that an order in favor of GM is outstanding, or (c) if PBGC files suit, at any time that an order in favor of PBGC is not outstanding. (v) Time for Initiating Determination Process and GM's Obligations Thereunder. The determination process described in section 9(h) of the Agreement must be initiated by PBGC (by PBGC's delivery to GM of a written notice that it has engaged, or intends to engage, an investment banking firm as provided in section 9(h)(ii) above) no later than 21 calendar days after PBGC receives from GM the items described in sections 9(c)(2)(A) through (I) above; provided, however, that if GM furnishes to PBGC the items described in section 9(c)(3)(ii)(B), PBGC shall have until seven business days or 14 calendar days (whichever applies, as determined under section 9(c)(3) above) after PBGC receives such updated lists and certifications to initiate (or recommence) the process. If PBGC timely initiates - 75 - 82 the determination process described in this section 9(h) of the Agreement, the investment banking firm shall be engaged by PBGC no later than 20 calendar days after such initiation by PBGC; provided however, that in the event after good-faith efforts PBGC is unable to engage an acceptable investment banking firm within the 20 calendar days, PBGC shall immediately notify GM and PBGC and GM shall confer and together attempt to select within five additional calendar days a mutually and reasonably acceptable investment banking firm; provided further however, that if PBGC and GM are unable mutually to agree upon an investment banking firm within such 5-day period, GM shall thereafter unilaterally select an investment banking firm from among the investment banking firms described in either of the first two sentences of section 9(h)(ii) that does not have a relationship with GM that is financially significant to such firm. GM shall upon reasonable request by the selected investment banking firm, immediately make available to that firm all financial books and records of GM and of members of GM's Controlled Group reasonably requested, to the same extent that those books and records are made available to GM's independent auditor, currently Deloitte & Touche, and subject to reasonable arrangements for protecting the confidentiality of such books and records. Once engaged, the selected investment banking firm shall have until the later of -- (A) 25 calendar days after GM has provided the firm access to the materials described in the preceding portion of this sentence, or (B) 60 calendar days from PBGC's initiation of the procedure described in this section 9(h) if PBGC engages the investment banker within the 20 calendar day period described in this section 9(h)(v), or (C) 65 calendar days from PBGC's initiation of the procedure described in this section 9(h) if PBGC and GM mutually select the investment banker during the five-day period immediately following the 20-calendar-day period described in this section 9(h)(v), or - 76 - 83 (D) 40 calendar days from GM's selection of the investment banker if GM unilaterally selects the investment banker after the five-day period immediately following the 20-calendar-day period described in this section 9(h)(v), within which to make the determination called for by this section 9(h) of the Agreement. If the aggregate fair value of all of the Reviewed Material Transfer(s) as determined by GM is within the range of fair values for such Transfers as determined by the investment banking firm, PBGC shall pay for the investment banker's fees and costs. If the aggregate fair value of all of the Reviewed Material Transfer(s) as determined by GM is not within the range of fair values for such Transfers as determined by the investment banking firm, GM shall reimburse PBGC for the investment banker's fees and costs except for any fees and costs related to any Material Transfer(s) as to which GM prevails in litigation. Notwithstanding the preceding, if GM selects the investment banking firm unilaterally as provided in the second sentence of this section 9(h)(v), GM shall pay for the investment banker's fees and costs. (vi) (A) If PBGC disputes any matter arising under section 9(e) or 9(f) other than a valuation issue described in section 9(h)(i) above, and provided that the aggregate value of all the Material Transfer(s) as stated by GM on the list and updated lists furnished to PBGC pursuant to sections 9(c)(2)(D) and 9(c)(3)(ii)(B) of this Agreement exceeds $3 billion, PBGC shall, within the time specified in the first sentence of section 9(h)(v) above, notify GM of the dispute in writing. The writing shall identify the specific issue(s) and provision(s) of the Agreement that are in dispute, the factual grounds upon which PBGC bases its dispute, the relief sought and the name of a reputable and recognized expert in the field in which the dispute arises whom PBGC proposes to have serve as a neutral arbitrator to resolve the dispute. Within 14 calendar days of receiving such notice, GM will advise PBGC whether GM agrees, in its sole discretion, to resolve the - 77 - 84 dispute through arbitration and, if so, GM shall either agree to the arbitrator proposed by PBGC or select a second reputable and recognized expert within that field and immediately notify PBGC in writing of GM's selection. If GM selects a second arbitrator, the two experts shall, within 14 calendar days thereafter, select a third expert, and the three experts (or the single arbitrator proposed by PBGC, if GM agrees) shall constitute the arbitration panel authorized to decide the dispute for the parties. An expert selected under this paragraph (A) need not be on a panel of arbitrators maintained by the American Arbitration Association or otherwise. (B) The parties shall meet with the arbitration panel to establish a timetable and procedures for the arbitration. The arbitration panel, if composed of three arbitrators, shall decide the dispute by majority vote. The arbitration panel shall issue its award within 10 calendar days after the panel receives all evidence deemed necessary by the panel to resolve the dispute, unless the parties agree otherwise. The award of the arbitration panel shall be final and binding to the extent provided in Title 9, United States Code. Each party shall bear its own costs together with one-half of the arbitration panel's fees and one- half of the cost the proceeding. (C) If GM, in its sole discretion, does not agree to arbitration pursuant to paragraph (A) above, then each party retains such rights and remedies as it has under applicable law. (D) If PBGC does not timely raise under this section 9(h)(vi) any matter arising under section 9(e) or 9(f) (other than a matter described in section 9(h)(i)), PBGC shall be required to deliver the executed Releases and Covenants Not to Sue as required and described by section 9(c)(1)(A) and 9(d)(v) of this Agreement, and/or to deliver the written statements as required and described under sections 9(c)(3) and 9(d)(vi) of this Agreement, and shall be forever estopped from challenging the validity of such Releases and Covenants Not to Sue, but without limiting the rights and remedies of PBGC as specifically - 78 - 85 preserved therein, and subject to suspension of PBGC's obligations under section 9(g). (i) PBGC's Duty to Execute and Deliver to GM Additional, Specific Releases in the Future. After the Transaction Date, and notwithstanding delivery of the Releases and Covenants Not to Sue described in sections 9(a), 9(b), 9(c), 9(d) and 9(f)(i)(D) of this Agreement, PBGC may be required to provide to GM or EDS, upon request, an additional release or additional releases in the form(s) of Appendix R2 and/or Appendix R3 or Appendix R4 and/or Appendix R5 to this Agreement (whichever is applicable, if any), provided, however, that after the Transaction Date PBGC shall be required to provide such releases only on three separate occasions and provided the requesting party pays PBGC $5000 on each such occasion. (j) PBGC's Further Assurances. At any time on or after the Transaction Date, upon the request of GM, PBGC shall certify and deliver to GM or EDS, any additional copies of the releases in the forms of Appendix R1, Appendix R2, Appendix R3, Appendix R4, or Appendix R5 hereto, or otherwise, to further evidence the release of GM, EDS, any and all EDS Releasees, any and all EDS Transferees or any other person described in this section 9 who shall be released upon the Transaction Date of a Qualified EDS Transaction, provided that the requesting party shall pay - 79 - 86 PBGC the agency's standard costs and charges for copying and production of documents in response to requests under the Freedom of Information Act. Such additional copies shall each be accompanied by a certificate, executed by a duly-authorized officer of PBGC, that the attached release is a true and correct copy of a release and covenant not to sue that was duly executed and delivered to GM and EDS pursuant to this Agreement. (k) No Release From Liability Respecting the EDS Plans. Nothing in the Releases and Covenants Not to Sue described in this section 9 shall be construed to release any of the EDS Releasees or EDS Transferees from their obligations and liabilities, if any, respecting the EDS Plans. (l) Effect of Reentry into GM Controlled Group. Once released from the GM Pension Liability as a result of the releases or covenants described in this section 9 of the Agreement, any EDS Releasee that reenters GM's Controlled Group and any EDS Transferee that enters or reenters GM's Controlled Group may, by reentering or entering the GM Controlled Group, become subject to the GM Pension Liability to the extent otherwise provided by law. (m) Extension of Time Periods. The parties acknowledge that any failure by GM to satisfy one or more of the time periods noted within section 9 of the Agreement - 80 - 87 shall not void or terminate PBGC obligations or the processes described in section 9. Rather, any such failure shall extend the remaining time periods set forth in section 9 by the number of days the process was delayed by GM. (n) Irreparable Injury. The parties acknowledge that failure by PBGC to deliver the Releases and Covenants Not to Sue as required and described in sections 9(a), 9(b), 9(c), 9(d) and 9(f)(i)(D) of the Agreement or the statement described in sections 9(c)(3) and 9(d)(vi) of this Agreement will cause GM and EDS and members of their respective Controlled Groups irreparable injury for which damages will be incalculable and as to which there will be no adequate remedy at law. (o) Certain New Subsidiaries. If, during the three-consecutive-year period ending on the Transaction Date, there are Material Transfers consisting of stock of NewSubs that have an aggregate fair value greater than $6 billion and that, immediately after the Transaction Date, are no longer member(s) of GM's Controlled Group and are members of EDS's Controlled Group, then all such Material Transfers shall be aggregated and treated the same as a Material Transfer consisting of stock of a single GM Subsidiary that has a fair value greater than $3 billion and that is not a member of GM's Controlled Group and is a member of EDS's Controlled Group on the Transaction Date for purposes of sections - 81 - 88 9(e)(2) and 9(f), including section 9(f)(i)(D) and 9(f)(iii), of the Agreement. Any Material Transfers consisting of stock of NewSubs that are not made during the three-consecutive-year period noted above shall not be aggregated and treated as provided for in the preceding sentence, nor shall such Material Transfers be taken into account in applying the $6 billion threshold set forth in the preceding sentence, but such Material Transfers shall be treated as Material Transfers to the extent otherwise provided under this Agreement. If the period beginning May 9, 1994, and ending on the Transaction Date is shorter than three years, then such shorter period shall be substituted for the three-consecutive-year period described above. - 82 - 89 SECTION 10: INTENDED BENEFICIARIES The parties to the Agreement are PBGC and GM. No persons other than GM and PBGC are intended to have enforceable rights or remedies under or arising under this Agreement, except that -- (i) EDS (or any successor thereto by reason of merger, consolidation or reorganization, or any assignee of all or substantially all of the business or assets of EDS) shall be an intended beneficiary of, and shall be entitled to enforce, the obligation of PBGC to deliver such executed Releases and Covenants Not to Sue as GM and EDS shall be entitled to receive under this Agreement; provided however, that EDS shall have rights under this section 10(i) of the Agreement only to the extent the Releases and Covenants Not to Sue are consistent with such certifications GM has made pursuant to section 9(c) of this Agreement and such determinations and related actions as GM may have elected in its sole discretion to make under section 9(f) of this Agreement, if any, and (ii) all persons in GM's Controlled Group on the Transaction Date, all EDS Releasees, all EDS Transferees, plus each of the successors and assigns, or any of them (whether or not incorporated) of any of the foregoing persons, and each and all of their parent organizations, subsidiary organizations, successors and assigns or any of them, shall be entitled to enforce the express provisions of the Releases and Covenants Not to Sue in accordance with the terms in the forms of appendices R1, and R2 and R3, or appendices R4 and R5 (if and as modified pursuant to section 9(f)) whichever is applicable, if and when such Releases and Covenants Not to Sue are executed and delivered to GM and the EDS Releasees. - 83 - 90 SECTION 11: REPRESENTATIONS AND WARRANTIES OF GM GM hereby represents and warrants to PBGC that each of the following representations and warranties is true and correct as of the Effective Date. (a) Organization. GM is duly organized under the laws of the state of Delaware and is qualified to do business under the laws of any state where a failure so to qualify would have a material adverse effect on its operations. GM has full power and authority to enter into and perform its obligations under the Agreement and to carry out and consummate the transactions contemplated by the Agreement. (b) Authorization. GM's execution, delivery and performance of the Agreement and any other documents to be executed by GM in connection with the Agreement have been duly authorized by all necessary corporate action. (c) No Legal Bar. GM's execution and delivery of the Agreement and any other documents to be executed and delivered by GM in connection with the Agreement, GM's performance of its obligations under the Agreement, GM's consummation of the transactions contemplated by the Agreement, and GM's compliance with the terms and provisions of the Agreement (i) will not violate in any material respect any law applicable to GM or any of its properties, the - 84 - 91 consequences of which violation could reasonably be expected to have a material adverse effect on the ability of GM to perform its obligations under the Agreement; and (ii) will not violate any provision of the Certificate of Incorporation or By-Laws of GM, or any material contract or agreement which is binding on GM or its properties, or result in a breach of or constitute (with due notice, lapse of time or both) a default under any indenture, agreement, lease or other instrument to which GM is a party, and will not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties. (d) Enforceability. This Agreement and any other documents to be executed and delivered by GM pursuant to the Agreement shall be duly executed by authorized officers or other representatives of GM. In addition, this Agreement shall constitute a legal, valid and binding contract and agreement of GM enforceable by PBGC, and only by PBGC (except that the Labor Secretary may enforce GM's obligations to the extent provided in section 3(b) of the Agreement, as applicable), against GM in accordance with its terms. (e) Opinion of Counsel. Upon the Effective Date of this Agreement, GM shall deliver to PBGC an opinion of counsel in the form of Appendix O1 hereto concerning GM's authority to enter into, deliver and perform this Agreement. - 85 - 92 (f) GM Pension Plans. Appendix P to this Agreement lists all of the GM Pension Plans as of the Effective Date, except that it may exclude certain GM Pension Plans that together account for less than 2 percent of the present value of the GM Pension Plans' combined liabilities as determined by the enrolled actuary(s) for the GM Pension Plans. (g) Material Transfers. Between May 9, 1994 and the Effective Date there have been no Material Transfers. If GM discovers on or before the Transaction Date that, notwithstanding the preceding sentence, a Material Transfer occurred between May 9, 1994 and the Effective Date, GM shall identify such Material Transfers on the list or updated list (if any) furnished to PBGC pursuant to section 9(c)(2)(D) and 9(c)(3)(ii)(B)(I) of this Agreement, and having identified such Material Transfer, shall be deemed not to have breached this representation and warranty. - 86 - 93 SECTION 12: REPRESENTATIONS AND WARRANTIES OF PBGC PBGC hereby represents and warrants to GM that each of the following representations and warranties is true and correct as of the Effective Date. (a) Organization. PBGC is a wholly-owned United States government corporation established under Title IV of ERISA. PBGC has full power and authority to enter into and perform its obligations under the Agreement and to carry out and consummate the transactions contemplated by the Agreement. (b) Authorization. PBGC's execution, delivery and performance of the Agreement and any other documents to be executed by PBGC in connection with the Agreement have been duly authorized by all necessary corporate action and are within PBGC's statutory authorization and authority. (c) No Legal Bar. PBGC's execution and delivery of the Agreement and any other documents to be executed and delivered by PBGC in connection with the Agreement, PBGC's performance of its obligations under the Agreement or any other documents to be executed by PBGC in connection with the Agreement, PBGC's consummation of the transactions contemplated by the Agreement and PBGC's compliance with the terms and provisions of the Agreement (i) will not violate in any material respect any law applicable to PBGC or any of its - 87 - 94 properties; and (ii) will not violate any provision of Title IV of ERISA or PBGC's By-Laws, other applicable statutes, regulations and rules governing PBGC, or any material contract or agreement which is binding on PBGC or its properties. (d) Enforceability. This Agreement and any other documents to be executed and delivered by PBGC pursuant to this Agreement shall be duly executed by authorized officers or other representatives of PBGC. This Agreement shall constitute a legal, valid and binding contract and agreement of PBGC enforceable against PBGC in accordance with its terms. (e) Opinion of Counsel. Upon the Effective Date of this Agreement, PBGC shall deliver to GM an opinion of counsel in the form of Appendix O2 hereto concerning PBGC's authority to enter into, deliver and perform this Agreement. - 88 - 95 SECTION 13: GM's REPORTING OBLIGATIONS (a) Income and Cash Schedules. For any Plan Year through the 2002 Plan Year for which GM takes into account an additional portion of the Contribution Credit Balance pursuant to section 6 of this Agreement, GM shall furnish to PBGC a schedule or schedules showing GM's Adjusted Net Income and GM's Cash for that Plan Year and for each subsequent Plan Year through and including the Plan Year in which the condition in subsection 6(a)(i) of this Agreement occurs, but in no event later than the 2002 Plan Year. The schedule showing GM's Adjusted Net Income shall include consolidated net income of GM's North American Operations (as shown in the Management Discussion and Analysis section of GM's Annual Report on Form 10-K), one-time transition charges, extraordinary items and restructuring charges. The schedule showing GM's Adjusted Net Income shall be accompanied by (i) a letter from GM's Chief Financial Officer certifying that nothing came to his/her attention that caused him/her to believe that the numbers are inconsistent with GM's Adjusted Net Income as defined in this Agreement (except as may be noted in such letter), and (ii) if applicable, notification of any sales or Reconfiguration described in section 6(b)(i) or 6(b)(ii) of this Agreement. The schedule showing GM's Cash shall be accompanied by a statement from GM's - 89 - 96 independent auditor confirming the accuracy of the schedule. In addition, GM shall furnish, upon request by the PBGC: (A) For each Plan Year in which GM takes into account an additional portion of the Contribution Credit Balance pursuant to section 6 of this Agreement, the amount of Restructuring Charges included in any of GM's financial statements, if and to the extent those Charges were used to determine the amount of GM's Adjusted Net Income; and (B) A report from GM's independent auditor describing agreed upon procedures it has performed in order to assist PBGC in evaluating any assertion furnished to PBGC by GM management pursuant to clause (A) above, such report to be prepared following such reasonable procedures as may be agreed to by such auditor, GM and PBGC under an agreed-upon procedures engagement of the type provided for in Statement on Standard for Attestation Engagements No. 3, of the American Institute for Certified Public Accountants. (b) Actuarial Valuation Reports. Provided that GM first shall have contributed the GM Class E Stock described in section 2(a) of this Agreement, for each Plan Year ending after the Effective Date of this Agreement until and including the Plan Year determined under section 13(j) of this Agreement, GM shall furnish to PBGC a copy of the Actuarial Valuation Report for the Hourly Plan in the same form as that Report is furnished by the Hourly Plan's enrolled actuary to GM. GM shall furnish each such Report no later than 30 days after the date the Report is provided to GM in final form, but in no event later than the last day of the eleventh month of such Plan Year. Each Actuarial Valuation Report shall contain substantially the same type of information for a Plan Year as is contained in the actuarial - 90 - 97 report for the Hourly Plan dated October 1, 1992. Each Actuarial Valuation Report also shall contain such additional information, if any, as the enrolled actuary for the Hourly Plan determines may be appropriate to calculate the Statutory Funding Requirements applicable to such Plan Year. (c) Annual Report (Form 5500). Provided that GM first shall have contributed the GM Class E Stock described in section 2(a) of this Agreement, for each Plan Year ending after the Effective Date of this Agreement until and including the Plan Year determined under section 13(j) of this Agreement, GM shall furnish to PBGC a copy of the Hourly Plan's Annual Report (Form 5500, including all attachments and schedules thereto). (d) Asset Trust Statements. If and as requested by PBGC from time to time beginning after the Effective Date of this Agreement, GM shall provide for a Plan Year preliminary and unaudited trust statement(s) showing the total value, on the last day of such Plan Year, of the Hourly Plan's assets and of those portions of the Hourly Plan's assets attributable to Employer Securities. Any trust statement requested by PBGC pursuant to this section 13(d) of the Agreement shall be provided by the later of (i) 60 days after the end of the Plan Year to which it pertains or (ii) 30 days after the request. The last date on which PBGC may request an asset trust statement with respect to a Plan Year is the - 91 - 98 date on which PBGC receives the Annual Report (Form 5500, including all schedules and attachments) for that Plan Year. GM makes no representations or warranties regarding the accuracy or completeness of the trust statements to be provided pursuant to this section 13(d), nor shall such asset trust statements be used as a basis for or as evidence in any action under section 3(b) or 8 of this Agreement. (e) Notice of Missed Funding Contributions. For each Plan Year beginning after the Effective Date of this Agreement until and including the Plan Year determined under section 13(j) of this Agreement, GM shall provide PBGC written notice of any failure to make a required funding contribution to the Hourly Plan within 10 days after the due date of such contribution. In addition, if requested by PBGC following the due date of a contribution, GM will confirm whether a required contribution has been made. (f) Use of Contribution Credit Balance. For each Plan Year beginning after the Effective Date of this Agreement until and including the Plan Year determined under section 13(j) of this Agreement, GM shall furnish to PBGC information showing the following amounts as determined by the Hourly Plan's enrolled actuary: (i) a worksheet showing the balance and use of the Contribution Credit Balance for that Plan Year; - 92 - 99 (ii) the limitation (if applicable) on the Stock Credit Balance attributable to Unsold Contributed Shares (or Unsold Exchanged Shares); and (iii) the amounts of the Stock Credit Balance and the Sold Stock Credit Balance as of the first and last dates of that Plan Year. The information required with respect to a Plan Year by this section 13(f) of the Agreement shall be furnished to PBGC no later than the last day of the eleventh month of the following Plan Year. (g) Additional Information. If and as requested by PBGC from time to time, GM also shall furnish to PBGC the following information: (i) a true copy of amendments to the Hourly Plan; (ii) a true copy of the restated Hourly Plan documents; and (iii) a true copy of portions of any collective bargaining agreement that refer or relate to the Hourly Plan. (h) Transfer of Controlling Interest. At least ten calendar days before a Transaction Date, GM shall notify PBGC in writing if any single GM Subsidiary having a fair value greater than $3 billion will no longer be in GM's Controlled Group as a result of a Qualified EDS Transaction, provided, however, that GM shall have no obligation under this section 13(h) with respect to any transfer that, at least ten calendar days prior to the date such notice would be required-- - 93 - 100 (i) was reported by GM in a press release delivered by GM to a nationally-distributed wire service; or (ii) was described in a proxy statement distributed to GM stockholders; or (iii) was reported by GM in a public filing with the U.S. Securities and Exchange Commission; or (iv) was reported in the Wall Street Journal, the New York Times, Bloomberg News or Reuters. If GM fails to provide the notice required under this section 13(h), PBGC's obligation to deliver the Releases and Covenants Not to Sue under section 9 of this Agreement (or to deliver the written statement as required and described by sections 9(c)(3) and 9(d)(vi) of this Agreement) shall be suspended unless and until EDS or an EDS Subsidiary returns stock to GM or a GM Subsidiary such that the transferred GM Subsidiary is once again a member of GM's Controlled Group. Nothing in this section 13(h) establishes, implies, or shall be cited as evidence that any person has any obligation to PBGC other than as expressly provided in this section 13(h). If, during the three-consecutive-year period ending on the Transaction Date, there are Material Transfers consisting of stock of NewSubs that have an aggregate fair value greater than $6 billion and that are no longer member(s) of GM's - 94 - 101 Controlled Group on the Transaction Date, then all such Material Transfers shall be aggregated and treated the same as a Material Transfer consisting of stock of a single GM Subsidiary that has a fair value greater than $3 billion and that will no longer be in GM's Controlled Group immediately after the Transaction Date for purposes of this section 9(h) of the Agreement. Any Material Transfers consisting of stock of NewSubs that are not made during the three-consecutive-year period noted above shall not be aggregated and treated as provided for in the preceding sentence, nor shall such Material Transfers be taken into account in applying the $6 billion threshold set forth in the preceding sentence, but such Material Transfers shall be treated as Material Transfers to the extent otherwise provided under this Agreement. If the period beginning May 9, 1994, and ending on the Transaction Date is shorter than three years, then such shorter period shall be substituted for the three-consecutive-year period described above. (i) Independent Accountant Procedures. No later than December 31, 1995, GM shall furnish to PBGC a draft of the specific procedures referred to in the second paragraph of Appendix T and a copy of the letter or letters from the Comptroller of GM referenced in Appendix T. For a period of 21 calendar days after such draft is furnished to PBGC, PBGC may comment on those procedures, provided however that PBGC - 95 - 102 shall have no right to approve, disapprove or amend those procedures, and provided further that nothing in this Agreement shall prevent GM's independent auditor from recommending additional procedures to be performed, and provided further the independent auditor shall provide to PBGC a draft of any such recommended additional procedures. (j) Termination of Reporting Obligations. Notwithstanding any other provision within this Agreement, the last Plan Year for which any of the Reporting Obligations described in this section 13 shall apply is the later of: (A) the 2002 Plan Year; or (B) the Plan Year during which the restrictions of section 7(a) cease to apply. - 96 - 103 SECTION 14: FEES AND EXPENSES Except as otherwise expressly provided herein, each of GM and PBGC shall pay its own respective costs, fees and expenses as incurred by it in connection with the Agreement and the transactions described in the Agreement. - 97 - 104 SECTION 15: CERTAIN TRANSFERS BY GM TO A NEW PARENT. (a) General. Any claim that PBGC has under this Agreement may be asserted only against GM and not against any GM Subsidiaries or EDS Releasees. If GM becomes the direct or indirect subsidiary of another corporation ("New Parent"), and if GM or a GM Subsidiary makes Covered Transfers to the New Parent that in the aggregate have a Fair Value, determined as of the date of the respective Covered Transfers, that exceeds $3 billion, then GM shall cause New Parent to agree with GM that: (i) New Parent (but not any other person, including its direct and indirect subsidiaries) will, subject to the limitations in sections 15(b), 15(c) and 15(d) below, satisfy GM's financial obligations, if any, under sections 8(b) and 8(c) of this Agreement (i.e., any obligation imposed by a court to pay money into the Hourly Plan pursuant to the procedures set forth in section 8(b) of the Agreement and any obligation to post collateral pursuant to section 8(c) of the Agreement); and (ii) such agreement shall be enforceable by PBGC. Any such obligation to cause the New Parent to enter into an agreement pursuant to this section 15 shall terminate on the last day that GM may be required to post collateral under section 8(c) of this Agreement. (b) New Parent's Required Agreement. The agreement that GM shall cause New Parent, if any, to enter into - 98 - 105 pursuant to this section 15 of the Agreement shall provide, and GM and PBGC hereby agree, that -- (i) New Parent shall have no liability under the agreement unless and until GM fails to comply with a material financial requirement of section 8(b) or 8(c) of this Agreement, PBGC has notified New Parent of such failure in writing, and 30 days have elapsed following such notice; and (ii) New Parent's liability under the agreement shall in no event exceed the lesser of -- (A) the dollar amount of GM's obligations under sections 8(b) and 8(c) that are not satisfied by GM, and (B) the Fair Value, determined as of the date New Parent is called upon to fulfill GM's financial obligations under sections 8(b) and 8(c), of (I) the assets received by New Parent in a Covered Transfer and still owned by New Parent, plus (II) the proceeds of any assets received by New Parent in a Covered Transfer but no longer owned by New Parent, minus (III) $3 billion. (c) Definitions. For purposes of this section 15 of the Agreement - -- (i) "Covered Transfer" means a transfer from GM or a GM Subsidiary to New Parent of assets having a fair value, on the date the Covered Transfer is made, of not less than $50 million; provided, however, that a "Covered Transfer" shall not include (1) any transfer of GM Shares, (2) any regular, special or extraordinary dividends paid to New Parent by GM or a GM Subsidiary not in excess of the amount of dividends paid out by New Parent to its stockholders during the same quarter or any one of the immediately following four quarters, (3) any payment or transfer of assets made in the ordinary course of business of GM or EDS, and (4) any payment or transfer of assets determined by the - 99 - 106 Board of Directors of GM or New Parent, as the case may be, to be for Fair Value, as provided in section 15(c)(ii), below. (ii) For purposes of this section 15 of the Agreement, "Fair Value" means the value established by the Board of Directors of GM (or if New Parent exists, of New Parent) based upon the opinion of a nationally recognized and reputable financial advisor. (d) New Parent's Rights and Defenses, and Termination of New Parent's Obligations. Nothing herein shall preclude New Parent from asserting any claim, right or defense available to GM or New Parent under this Agreement or under law. Any obligation acquired by New Parent pursuant to this section 15 of the Agreement shall terminate at the same time that the corresponding obligation of GM expires or would expire under this Agreement. - 100 - 107 SECTION 16: GENERAL PROVISIONS (a) Limitation of Rights. This Agreement is intended to be and is for the sole and exclusive benefit of GM, PBGC and, to the limited extent provided in section 10 of this Agreement, the additional persons specified therein. Nothing expressed or mentioned in or to be implied from the Agreement gives any person other than GM and PBGC any legal or equitable right, remedy or claim against GM or PBGC under or in respect of this Agreement, except to the limited extent provided in section 10 of this Agreement. (b) Severability. If any provision of this Agreement shall be invalid, inoperative or unenforceable as applied in any particular case, this shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance. If any provision of this Agreement shall be invalid, inoperative or unenforceable in all cases, this shall not have the effect of rendering any other provision of the Agreement invalid, inoperative, or unenforceable. The invalidity of any portion of this Agreement shall not affect the remaining portions of the Agreement. (c) Notices. All notices, demands, instructions and other communications required or permitted under the Agreement to any party to the Agreement shall be in writing - 101 - 108 and shall be personally delivered or sent by registered, certified or express mail, postage prepaid, return receipt requested; telefacsimile (which shall be immediately followed by the original of such communication); or pre-paid overnight delivery service with confirmed receipt; and shall be deemed to be given for purposes of this Agreement on the date the writing is received by the intended recipient, or in the case of telefacsimile, on the date transmitted to the intended recipient. Unless otherwise specified in a notice sent or delivered in accordance with the foregoing provisions of this section, notices, demands, instructions and other communications in writing shall be sent to the parties as indicated below: To GM: Treasurer General Motors Corporation 767 Fifth Avenue New York, NY 10153 Telephone: 212-418-3500 Telefacsimile: 212-418-3632; with copies to Office of General Counsel General Motors Corporation New Center One Building 3031 West Grand Boulevard P.O. Box 33122 Detroit, MI 48232 Attn: Francis S. Jaworski Telephone: (313) 974-1640 Telefacsimile: (313) 974-0210 and Gary M. Ford, Esq. Groom and Nordberg, Chartered 1701 Pennsylvania Avenue, N.W. Suite 1200
- 102 - 109 Washington, D.C. 20006 Telephone: (202) 857-0620 Telefacsimile: (202) 659-4503 To PBGC: General Counsel Pension Benefit Guaranty Corporation 1200 K Street, N.W. Washington, D.C. 20005-4026 Telephone: 202-326-4020 Telefacsimile: 202-326-4112 Director Corporate Finance and Negotiations Department Pension Benefit Guaranty Corporation 1200 K Street, N.W. Washington, D.C. 20005-4026 Telephone: 202-326-4070 Telefacsimile: 202-842-2643 To EDS: General Counsel Electronic Data Systems Corporation 5400 Legacy Drive H3-3A-05 Plano, Texas 75024 Telephone: (214) 605-5584 Telefacsimile (214) 605-5610
(d) Business Days. If the last date (whether measured by calendar days or business days) for performing any act or exercising any right provided for in the Agreement falls on a Saturday, Sunday, or federal holiday, unless otherwise expressly provided in this Agreement, the act may be performed or the right exercised on the next day that is not a Saturday, Sunday or federal holiday with the same force and effect as if done on the date provided in the Agreement. (e) Change of Plan Year. If, consistent with applicable law, GM changes the Plan Year of the Hourly Plan, - 103 - 110 the costs and benefits of this Agreement, including the amount and timing of GM's contributions to the Hourly Plan after application of this Agreement, shall to the extent reasonably possible be preserved (but not accelerated) as if the plan year change had not occurred. (f) Counterparts. This Agreement may be executed in one or more counterparts and by different parties on separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (g) Entire Agreement. This Agreement and its Appendices contain the complete and exclusive statement of the agreement and understanding by and among the parties hereto and supersede all prior agreements, understandings, commitments, representations, communications, and proposals, oral or written, between the parties relating to the subject matter of this Agreement. This Agreement may not be amended, modified, or supplemented except by an instrument in writing executed by the parties to this Agreement. (h) No Admission of Liability. This Agreement is not and shall not be construed as or deemed to be an admission or concession by or on the part of any party of any liability in connection with any matter described in the Agreement, and each party expressly denies any liability whatsoever. The - 104 - 111 basis for this Agreement is the desire of the parties to resolve the controversy between them without litigation. (i) Survival of Representations and Warranties. All representations and warranties in this Agreement shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any party. (j) No Reliance. Except for the representations and warranties of the parties stated in sections 11 and 12 of this Agreement, each party to the Agreement has made its own independent inquiry concerning the matters, facts and circumstances material to the settlement embodied in the Agreement, including without limitation, the legal, tax and accounting aspects of the transactions contemplated in the Agreement and any related transactions. No party to the Agreement has relied and no party will rely upon any other party to the Agreement, or any other party's legal counsel or financial or actuarial advisors, for any information or advice of any kind in connection with any of the transactions contemplated in the Agreement or with any related transactions. (k) Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the amendment is in writing and signed by the parties hereto. The failure of any party to the Agreement to enforce a - 105 - 112 provision of the Agreement shall not constitute a waiver of the party's right to enforce that provision of the Agreement. (l) Headings. The section headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement. (m) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the District of Columbia and by ERISA, the Code and other laws of the United States to the extent they preempt District of Columbia law. (n) Binding Effect. This Agreement shall be binding upon GM and PBGC and their respective successors, if any (and to the extent provided in section 10, shall inure to the benefit of the Intended Beneficiaries and in each case to their respective heirs, legal representatives, successors and assigns). (o) Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party hereto or the Intended Beneficiaries. Nor shall any rule of construction that favors a non-draftsman or a government agency be applied. A reference to any statute shall be deemed also to - 106 - 113 refer to all rules and regulations promulgated under the statute, unless the context requires otherwise. (p) Reservation of Rights. Subject to the provisions of sections 3, 8 and 16(q) of this Agreement, and to the releases and covenants not to sue described in section 9 of this Agreement, nothing in this Agreement shall preclude PBGC from exercising its regulatory, enforcement, litigation or other authority as set forth in ERISA and the Code with respect to any person, other than as a result of a Qualified EDS Transaction. Except as expressly provided herein, nothing in this Agreement constitutes or reflects a waiver or modification by GM of any claim, right or defense that GM has under law. (q) Confidential Information. All documents and other information furnished pursuant to the requirements of sections 9 and 13 of this Agreement ("Confidential Information") shall be held confidential in accordance with the following specific requirements: (i) Except as may be required by law or as provided in section 16(q)(v) below, PBGC agrees not to disclose the Confidential Information to anyone other than those Executive Branch Officials, and PBGC employees and consultants who have a need to know the Confidential Information as part of their job responsibilities. PBGC shall inform all such Executive Branch officials to whom Confidential Information is disclosed of the need to maintain the confidentiality of such Confidential Information. Before - 107 - 114 providing Confidential Information to any consultant, PBGC shall first obtain that consultant's written agreement to abide by the terms of this section 16(q) of the Agreement with respect to the Confidential Information. (ii) Before furnishing any document that constitutes Confidential Information to PBGC, GM shall affix the words "CONFIDENTIAL" to the first page of that document. In addition, within 30 days after the Effective Date, PBGC shall furnish a copy of this section 16(q) of the Agreement to PBGC's disclosure officer under 29 C.F.R. Section 1603.2(a). (iii) PBGC shall treat all Confidential Information as confidential, proprietary information. Specifically, the Confidential Information constitutes, and has been designated by GM as, non-public information that constitutes trade secret and commercial or financial information that currently is privileged or confidential under 5 U.S.C. Section 552(b)(4) and 29 C.F.R. Part 2603. PBGC expressly agrees with that designation and acknowledges that such designation will not expire until 10 years after the confidential information is submitted to PBGC. Disclosure of such confidential information may cause GM competitive harm. In addition, PBGC acknowledges that the Confidential Information may include information that is material and non-public information relating to the financial condition of GM, and, as such, a person who trades in the securities of GM based upon such information or who transmits such information to a person who so trades would subject himself or herself to possible liability under federal securities laws. PBGC shall assert all permissible exemptions from or privileges against disclosure of the Confidential Information. (iv) Unless otherwise required by law, PBGC (a) shall notify GM of any request for the Confidential Information, including but not limited to, any requests made under the Freedom of Information Act or in connection with any court, administrative or legislative proceedings in which disclosure of such information may be compelled, and (b) further shall afford GM and its affiliates the timely - 108 - 115 opportunity to seek a protective order or take such other legal actions as GM deems appropriate to preserve the confidentiality of the Confidential Information; provided, however, that in the case of a request for Confidential Information made by a chair of any Congressional committee or subcommittee on behalf of such committee or subcommittee ("Congressional Request"), PBGC shall notify GM in writing of such request at least five business days before PBGC furnishes such Confidential Information to the requesting party, and further provided, however, that in the case of a written Congressional Request signed by a chair of any Congressional committee or subcommittee on behalf of such committee or subcommittee, which Request asks that the PBGC respond in less than five days, PBGC shall send GM a copy of such written request by telefacsimile and overnight mail immediately upon receipt thereof, and in any event before furnishing such Confidential Information to the requesting party. In the case of any Congressional Request (whether written or not) PBGC shall (a) inform the requesting party, not later than the time the Confidential Information is provided to such party, that GM has indicated that the Confidential Information is nonpublic, proprietary information the disclosure of which would be damaging to GM, and (b) request, not later than the time the Confidential Information is provided to such party, that the confidential nature of the Confidential Information be preserved. (v) PBGC shall not use Confidential Information, or any summaries, analyses and reformulations of the Confidential Information, as evidence in any court or administrative proceeding, except that PBGC may use such Information as evidence in a proceeding brought by one party against the other under this Agreement. If and to the extent PBGC uses Confidential Information as evidence in a - 109 - 116 proceeding under this Agreement, PBGC shall use its best efforts to have placed under seal any Confidential Information that PBGC submits to the court or agency that presides over the proceeding. (vi) The requirements of this section 16(q) do not apply to information that is available to the general public, information that was available to PBGC prior to its disclosure to PBGC by GM (and not otherwise required to be treated as confidential), or information that becomes available to PBGC on a non-confidential basis provided that the information is not subject to a confidentiality agreement with or for the benefit of GM actually known to PBGC. (vii) Nothing in this Agreement waives or modifies the requirements of any other confidentiality agreement entered into between PBGC and GM with respect to information provided to PBGC under any such agreement. Nothing in this Agreement limits or affects in any way PBGC's investigatory authority under section 4003 of ERISA, including PBGC's authority to subpoena witnesses and require the production of records. (r) Assignment. This Agreement may not be assigned in whole or in part by either party without the express written consent of the other party. (s) No Change to Governing Plan Documents or Plan Administration. This Agreement is not a document or instrument governing the Hourly Plan, nor does anything in this Agreement amend, supplement or derogate from the documents and instruments governing the Hourly Plan. Further, nothing in this Agreement alters, amends or - 110 - 117 otherwise modifies the operation or administration of the Hourly Plan. (t) Role of Named Fiduciary. The Named Fiduciary of the Hourly Plan shall be furnished copies of all materials furnished to the GM Board of Directors that report on the funded status of the Hourly Plan (other than materials relating to future pension funding matters) or on GM's compliance with this Agreement (other than materials regarding the status of litigation, claims or potential or actual disputes raised by PBGC under this Agreement, or any materials subject to a valid privilege belonging to GM, a GM Subsidiary, an EDS Releasee, or the respective counsels of any such persons) within 10 business days of the time those materials are furnished to the GM Board of Directors. GM shall in no way seek to restrict the Named Fiduciary from advising the PBGC about or conferring with the PBGC concerning compliance with this Agreement; it being understood that nothing contained in this Agreement shall require the Named Fiduciary to make, or prevent the Named Fiduciary from making, any inquiry or analysis respecting GM's compliance with this Agreement. In deciding whether or not to communicate with the PBGC regarding this Agreement, or the compliance by GM therewith, the Named Fiduciary may rely upon the accuracy and completeness of the information disclosed in the materials provided to it by GM. The Named - 111 - 118 Fiduciary shall have no rights or obligations relating to the enforcement of this Agreement; provided, however, that nothing contained herein shall limit it in acting as provided in this section 16(t) or as otherwise required or permitted by law. - 112 - 119 GENERAL MOTORS CORPORATION By: /s/ HEIDI KUNZ ------------------------ HEIDI KUNZ Its Treasurer PENSION BENEFIT GUARANTY CORPORATION By: /s/ MARTIN SLATE ------------------------ MARTIN SLATE Its Executive Director 120 APPENDICES TO AGREEMENT Made as of March 3, 1995, By and Between General Motors Corporation and The Pension Benefit Guaranty Corporation 121 CONTENTS Appendix C1 Illustration of Sections 7(c) and 7(d) of Agreement Appendix D1 Designated Cash Notice Appendix E1 GM's Certificate to Escrow Agent that Qualified EDS Transaction has Occurred Appendix E2 PBGC's Statement to Escrow Agent Appendix O1 Opinion of Counsel for GM Appendix O2 Opinion of Counsel for PBGC Appendix P List of GM Pension Plans (subject to de minimis rule in section 11(f) of Agreement) Appendix Q GM Certificate indicating that transaction or proposed transaction will constitute a Qualified EDS Transaction Appendix R1 Initial Release and Covenant Not to Sue Respecting EDS Releasees, EDS Transferees and GM Controlled Group Appendix R2 Specific Release and Covenant Not to Sue Respecting EDS Releasees and GM Controlled Group Appendix R3 Specific Release and Covenant Not to Sue Respecting EDS Transferees and GM Controlled Group Appendix R4 Alternative Form of Specific Release and Covenant Not to Sue Respecting EDS Releasees and GM Controlled Group Appendix R5 Alternative Form of Specific Release and Covenant Not to Sue Respecting EDS Transferees and GM Controlled Group Appendix S List of EDS Subsidiaries as of Effective Date Appendix T Deloitte & Touche Procedures i 122 APPENDIX C1 ILLUSTRATION OF SECTION 7(c) AND 7(d) OF AGREEMENT For purposes of this Illustration, the following simplifications were made: * In the Illustration asterisked asset values are measured at fair market value. Value for DRC and FSA will actually be determined using GM's normal asset valuation method. ** Where noted the Illustration disregards the additional restrictions in Sections 4, 7(a) and 7(b) on the availability of the Stock Credit Balance. The Illustration also assumes no dividends were paid on the stock during this period. If dividends were paid, certain values such as the values of sold stock and actuarial gains would be adjusted upward to reflect the additional value of dividends paid. 7/1/94 Contributed Value = 177 MM x $30 = $5,310 MM Funding Interest Rate is 9%. 10/1/94 Unsold 177 MM x $31 = $5,487 MM Sold O x $31 = 0 ----- Total $5,487 MM Asset Value (FMV)* = $5,487 MM Reduced by Statutory Credit Balance for purposes of DRC to the extent required under the law in effect at the time. 9/30/95 (A) Facts Unsold 147 MM x $34 = $4,998 MM Sold (9/30/95) 30 MM x $34 = $1,020 MM --------- Total $6,018 MM Asset Value (FMV)* = $6,018 MM Reduced by Statutory Credit Balance for purposes of DRC Calculation to the extent required under the law in effect at the time. (B) Review of Available Stock Credit Balance** (1) If Not Used on 9/30/95: 1.25 Sold 9/30/95: 30 MM x $30 x (1.09) = $1,002.4 MM 1.25 Unsold 9/30/95: 147 MM x $30 x (1.09) = $4,911.6 MM ------------ Total $5,914.0 MM Page 1 of 4 123 (2) Available for Use on 9/30/95: 1.25 Sold 9/30/95: 30 MM x $30 x (1.09) = $1,002.4 MM 1.25 Unsold 9/30/95: 147 MM x $30 x (1.09) = $4,911.6 MM ----------- Total $5,914.0 MM (C) Review on a "Per Share" Basis Actual Value Received per Share = $34.00 10/1/94 Value, plus Interest per Share = $31 x 1.09 = $33.79 Contributed Value, plus Interest 1.25 per Share = $30 x (1.09) $33.41 Gain not Previously Recognized ($34.00 - $33.79) x 30 MM = $6.3 MM Under Section 7(c), $6.3 million will show up as an actuarial gain in the FSA, but the available Stock Credit Balance will not be adjusted. The increased value of the remaining 147 MM shares [147 MM x ($34.00 - $33.79)] will also show up as an actuarial gain in the FSA. The amortization of these gains will result in credits under normal ERISA rules. (D) Review on an Aggregate Basis Total gain on sold shares = 30 MM x ($34 - $30) = $120 MM This gain will be reflected in two ways: - The expected appreciation increases the Stock Credit 1.25 Balance = 30 MM x ($30 x 1.09 - $30) = $102.4 MM. - The unexpected appreciation of $17.6 MM appears as an actuarial gain in the FSA, which will be amortized under normal ERISA funding rules. (Some of this was recognized on 10/1/94, and some on 10/1/95.) - The unexpected appreciation on the remaining 147 MM shares also appears as an actuarial gain in the FSA. (Some of this was recognized on 10/1/94, and some on 10/1/95.) 9/30/96 (A) Facts Of the remaining 147 MM unsold shares: Sold 9/30/96, 10 MM @ $30 = $ 300 MM Unsold 137 MM @ $30 = $4,110 MM Page 2 of 4 124 Scenario I: (B) Additional Facts GM did not previously use any sold or unsold Stock Credit Balance. In addition, GM does not use any in this year. (C) Review of Available Stock Credit Balance:** (1) If Not Used on 9/30/96: 2.25 Sold 9/30/95: 30 MM x $30(1.09) = $1,092.6 MM Sold 9/30/96: 10 MM x $30 = $ 300.0 MM 2.25 Unsold: 137 MM x $30 (1.09) = $4,989.4 MM ----------- Total $6,382.0 MM (2) Available for Use on 9/30/96: 2.25 Sold 9/30/95: 30 MM x $30 (1.09) = $1,092.6 MM Sold 9/30/96: 10 MM x $30 = $ 300.0 MM Unsold: 137 MM x $30 = $4,110.0 MM ----------- $5,502.6 MM Scenario II: (B) Additional Facts Used all Stock Credit Balance from 30 MM shares sold 1.25 9/30/95 (i.e., 30 MM x $30 x 1.09 ). On 9/30/95, also used 20 MM shares' worth of unsold Stock Credit 1.25 Balance (i.e., 20 MM x $30 x 1.09 ) when shares were worth $34. (C) Review of Available Stock Credit Balance:** (1) If Not Used on 9/30/96: 2.25 Unsold, unused 9/30/96:127 MM x $30 x(1,09) = $4,625.2 MM Section 7(d) adjustment (see below) -52.2 MM ----------- Adjusted unused $4,573.0 MM This conforms to the credit balance rolled forward from earlier years as follows: Initial Credit Balance 7/1/94 $5,310.0 MM Rolled forward to 9/30/95 5,914.0 MM 1.25 (5,310 MM X 1.09 ) Applied on 9/30/95 -1,670.6 MM ---------- 1.25 (50 MM x $30 x 1.09 ) Remaining Balance on 9/30/95 $4,243.4 MM Rolled forward to 9/30/96 4,625.2 MM Section 7(d) adjustment (see below) - 52.2 MM ---------- $4,573.0 MM Page 3 of 4 125 (2) Available for Use on 9/30/96: Unsold, unused 9/30/96: 127 MM x $30 = $3,810.0 MM Section 7(d) adjustment ( see below) - 52.2 MM ------------- $3,757.8 MM (D) Computation of Section 7(d) Adjustment: - 20 MM unsold shares were used and the Stock Credit Balance taken into account for those shares was $668.2 MM (i.e., 1.25 $30 x 1.09 x 20 MM). - 10 MM of these shares were sold on 9/30/96 for only $30 per share. (The other 10 MM have not yet been sold.) - Because the sales proceeds ($300 MM) were less than the Stock Credit Balance taken into account for those sold shares, the available Stock Credit Balance must be adjusted until the expiration of the Stock Credit Balance restrictions in the Agreement. This adjustment is 2.25 (i) The loss of $64.2 MM [i.e., 10 MM x ($30 x 1.09 - $30)] which represents the updated value of the 10 MM shares as credited to the FSA, as compared to the sale value, minus (ii) The $12 MM "unamortized gains" that have arisen on previously sold shares. - The total "gains" realized on sold shares were realized on 10/1/95 when 30 MM shares were sold at $34/share. The "gain" realized then was $17.6 MM [30 MM x ($34 - $30 x 1.25 1.09 )]. Actuarial gains on unsold shares are not applied in determining the offset to the loss. - The remaining unamortized portion of this "gain" is $12.0 MM, determined as follows: - "Gain" reflected 10/1/94 is $10.4 MM [30 MM x ($31 - $30 x .25 1.09 )] - "Gain" reflected 10/1/95 is $6.3 MM [30 MM x ($34 - $31 x 1.09)] - Remaining unamortized portion of these "gains" is $6.8 MM and $5.2 MM, respectively. Page 4 of 4 126 APPENDIX D1 United States Trust Company of New York 114 West 47th Street New York, New York 10036 Re: General Motors Corporation Hourly Rate Employees Pension Plan Ladies and Gentlemen: Please be advised that the contribution of $__________ made by General Motors Corporation ("GM") to the General Motors Corporation Hourly-Rate Employees Pension Plan on [Date] constitutes "Designated Cash" within the meaning of the Agreement made as of March 3, 1995, by and between GM and the Pension Benefit Guaranty Corporation. Sincerely, General Motors Corporation cc: [PBGC's General Counsel PBGC's Director, Corporate Finance and Negotiations Department] 127 APPENDIX E1 [Escrow Agent] Dear Sir or Madame: This is to certify that, as of your receipt of this writing, a "Qualified EDS Transaction," as that term is defined in the Agreement made as of March 3, 1995, by and between General Motors Corporation and the Pension Benefit Guaranty Corporation, has occurred. Sincerely, General Motors Corporation 128 APPENDIX E2 [Escrow Agent] Dear Sir or Madam: The Pension Benefit Guaranty Corporation ("PBGC") hereby authorizes you to deliver to GM and EDS the Releases and Covenants Not to Sue that PBGC delivered to you on [date], copies attached. Sincerely, Pension Benefit Guaranty Corporation 129 APPENDIX O1 March 3, 1995 Pension Benefit Guaranty Corporation 1200 K Street, N.W. Washington, D.C. 20005 Ladies and Gentlemen: I am General Counsel of General Motors Corporation ("GM"), a Delaware corporation. This opinion is delivered to you pursuant to section 11(e) of the Agreement ("Agreement") made as of March 3, 1995, by and between GM and the Pension Benefit Guaranty Corporation ("PBGC") Agreement. In connection with this opinion, I or attorneys working under my supervision have examined and relied upon the original or executed copies, certified or otherwise identified to our satisfaction, of the Agreement delivered by GM of even date herewith, and originals or copies certified or otherwise identified to our satisfaction of such records, agreements and instruments and certificates, as we have deemed necessary and relevant to form the basis for the opinions herein. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the authenticity of the originals of such latter documents, the legal capacity of all natural persons, and that the Agreement is binding upon and enforceable against PBGC as a party thereto. The opinions herein are also subject to the following assumptions and qualifications: (a) I express no opinion as to the enforceability of any provision of the Agreement to the extent such provision may be 130 Pension Benefit Guaranty Corporation March 3, 1995 Page 2 subject to, or affected by, applicable bankruptcy, insolvency, reorganization, moratorium or other state or federal laws affecting the rights and remedies of creditors generally (including, without limitation, fraudulent transfer laws). (b) In rendering the opinions relating to enforceability set forth in paragraph 2 below, I have assumed that PBGC will seek to enforce its rights under the Agreement only in good faith and in a commercially reasonable manner. (c) I express no opinion concerning any laws other than federal laws of the United States of America and the laws of Delaware. I am not admitted to practice law in the State of Delaware, but an attorney working under my supervision whom I have relied upon in giving this opinion is familiar with the laws of that State in the ordinary course of his practice. (d) I have assumed there was no misrepresentation, omission or deceit by any person in connection with the execution, delivery or performance of the Agreement or any of the transactions contemplated by the Agreement. Based upon and subject to the foregoing assumptions and qualifications, it is my opinion that: 1. GM is duly organized under the laws of Delaware and is qualified to do business under the laws of any state where failure to do so qualify would have a material adverse effect on its operations. GM has the power and authority to enter into and perform its obligations under the Agreement and to carry out and consummate the transactions contemplated thereby. 2. GM's execution, delivery and performance of the Agreement and any other documents to be executed by GM in connection with the Agreement have been duly authorized by all necessary corporate action. 3. GM's execution and delivery of the Agreement and any other documents to be executed and delivered by GM in connection with the Agreement, GM's performance of its obligations under the Agreement, GM's consummation of the transactions contemplated by the Agreement, and GM's compliance with the terms and provisions of the Agreement (i) will not violate in any material respect any law applicable to GM or any of its properties, the consequences of which violation could reasonably be expected to have a material adverse effect on the ability of GM to perform its obligations under the Agreement; and (ii) will not violate any provision of the Certificate of Incorporation or By-Laws of GM, 131 Pension Benefit Guaranty Corporation March 3, 1995 Page 3 or any material contract or agreement which is binding on GM or its properties, or result in a breach of or constitute (with due notice, lapse of time or both) a default under any indenture, agreement, lease or other instrument to which GM is a party, and will not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties, except as specifically provided for in the Agreement. 4. The Agreement has been duly executed and delivered by GM and constitutes a legal, valid and binding contract and obligation of GM enforceable against GM in accordance with its terms. 5. I am not aware of any actions, suits or proceedings pending or threatened in writing against GM or any of its property in any court or before any arbitrator or mediator or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would have a materially adverse effect on GM's ability to perform its obligations contemplated by the Agreement or the validity or enforceability thereof, with the possible exception of the following:__________________. 6. GM has obtained all necessary approvals, consents and authorizations, and has made all registrations, qualifications or filings with all relevant governmental authorities required on the part of GM in connection with the execution and delivery by GM of the Agreement. This opinion is intended solely for your use in connection with the transactions occurring today and with any Qualified EDS Transaction (as that term is defined in the Agreement) and is not to be made available to or relied upon by other persons without our express prior written consent. This opinion is limited to the state of the law and facts and circumstances existing as of the date hereof, and I do not undertake to update this opinion for events or changes in the law occurring after the date hereof. Sincerely, Thomas Gottschalk General Counsel 132 APPENDIX O2 March 3, 1995 General Motors Corporation 767 Fifth Avenue New York, NY 10153 Ladies and Gentlemen: I am General Counsel of the Pension Benefit Guaranty Corporation ("PBGC"), a United States government corporation established under Section 4002 of the Employee Retirement Income Security Act of 1974, as amended. This opinion is delivered to you pursuant to section 12(e) of the Agreement made as of March 3, 1995, by and between General Motors Corporation and PBGC (the "Agreement"). In connection with this opinion, I or attorneys working under my supervision have examined and relied upon originals or executed copies, certified or otherwise identified to our satisfaction, of the Agreement executed and delivered by PBGC of even date herewith, and originals or copies certified or otherwise identified to our satisfaction of such records, agreements and instruments and certificates of public officials and employees of the PBGC, as we have deemed necessary and relevant to form the basis for the opinions herein. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the authenticity of the originals of such latter documents, the legal capacity of all natural persons, and that the Agreement is binding upon and enforceable against GM as a party thereto. The opinions herein are also subject to the following assumptions and qualifications: (a) I express no opinion as to the enforceability of any provision of the Agreement to the extent such provision may be subject to, or affected by, applicable bankruptcy, insolvency, reorganization, moratorium or other state or federal laws affecting the rights and remedies of creditors generally (including, without limitation, fraudulent transfer laws). 133 General Motors Corporation March 3, 1995 Page 2 (b) I express no opinion with respect to the enforceability of provisions in the Agreement providing for (i) specific performance, injunctive relief or other equitable remedies, regardless of whether such enforceability is sought in a proceeding in equity or at law, or (ii) waiver of rights by the PBGC which under applicable law may not be waived; provided, however, that nothing in part (ii) of this qualification should be construed to detract from the opinions set forth in paragraphs 1 and 2 below. (c) In rendering the opinions relating to enforceability set forth in paragraph 2 below, I have assumed that GM and the Intended Beneficiaries will seek to enforce any rights under the Agreement only in good faith and in a commercially reasonable manner. (d) I express no opinion concerning any laws other than the federal laws of the United States of America. (e) I have assumed there was no misrepresentation, omission or deceit by any person in connection with the execution, delivery or performance of the Agreement or any of the transactions contemplated by the Agreement. Based upon and subject to the foregoing assumptions and qualifications, it is my opinion that: 1. The PBGC is a United States government corporation established under Section 4002 of ERISA. The PBGC has the power and authority to execute and perform its obligations under the Agreement and to carry out and consummate the transactions contemplated thereby, including without limitation, the execution and delivery of the releases and covenants not to sue described in section 9 of the Agreement. 2. All necessary action has been taken by the PBGC to authorize the execution, delivery and performance by it of the Agreement. The Agreement has been duly executed and delivered by PBGC and constitutes a legal, valid and binding obligation of PBGC, enforceable against the PBGC in accordance with its terms. PBGC is authorized to grant the releases and covenants not to sue provided for in section 9 of the Agreement. If and when those releases and covenants not to sue are executed and delivered, they will be enforceable against PBGC in accordance with their terms. 3. The execution and delivery by the PBGC of, and the performance by the PBGC of its obligations under, the Agreement, 134 General Motors Corporation March 3, 1995 Page 3 do not conflict with Title IV of ERISA or PBGC's Bylaws. 4. I am not aware of any actions, suits or proceedings pending or threatened in writing against the PBGC or any of its property in any court or before any arbitrator or mediator or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would have a materially adverse effect on the PBGC's ability to perform its obligations contemplated by the Agreement or the validity or enforceability thereof. 5. The PBGC has obtained all necessary approvals, consents and authorizations, and has made all registrations, qualifications or filings with all relevant governmental authorities required on the part of the PBGC in connection with the execution and delivery by the PBGC of the Agreement. This opinion is intended solely for your use in connection with the transactions occurring today and with any Qualified EDS Transaction (as that term is defined in the Agreement) and is not to be made available to or relied upon by other persons without our express prior written consent. This opinion is limited to the state of the law and facts and circumstances existing as of the date hereof, and I do not undertake to update this opinion for events or changes in law occurring after the date hereof. Very truly yours, Carol Connor Flowe General Counsel 135 APPENDIX P General Motors Retirement Program for Salaried Employees General Motors Hourly Rate Employees Pension Plan Saturn Personal Choices Retirement Plan for Non-Represented Team Members Employees Retirement Plan for GMAC Mortgage Corporation NAVCO Corporation Pension Plan Hughes Non-Bargaining Retirement Plan Hughes Bargaining Retirement Plan Hughes Subsidiary Retirement Plan 136 APPENDIX Q Director, Corporate Finance and Negotiations Department and General Counsel Pension Benefit Guaranty Corporation 1200 K Street, N.W. Washington, D.C. 20005-4026 Re: Certificate of Qualified EDS Transaction Ladies and Gentlemen: Please be advised that General Motors Corporation intends to enter into [has entered into] a transaction with an estimated effective date of [date] (the "Proposed Transaction") that GM concludes will constitute a "Qualified EDS Transaction" within the meaning of the Agreement made as of March 3, 1995 by and between GM and the Pension Benefit Guaranty Corporation (the "Agreement"). As shown by the enclosed statement from [name of GM officer or attorney], the Proposed Transaction, if and when consummated, will result in EDS ceasing to be a member of GM's "controlled group." Enclosed in this regard are statements from the Master Trustees and Independent Fiduciary of the General Motors Corporation Hourly Employees Pension Plan ("Hourly Plan") showing the value of the Hourly Plan's assets, and the values of GM Class E Stock and/or other Employer Securities held by the Hourly Plan as of [date]. Sincerely, General Motors Corporation Enclosures 137 [APPENDIX R1] RELEASE AND COVENANT NOT TO SUE 1. In consideration of the terms, conditions, mutual covenants and agreements set forth in the Agreement made as of March 3, 1995 (the "EFFECTIVE DATE"), by and between General Motors Corporation ("GM") and the Pension Benefit Guaranty Corporation ("PBGC") (the "AGREEMENT"), the adequacy and sufficiency of which are hereby acknowledged, the PBGC, a wholly-owned United States government corporation created by section 4002(b) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. Section 1302(b), on its own behalf and in every other capacity in which it may now or in the future act, releases and forever discharges each of the EDS RELEASEES and EDS TRANSFEREES from any claim whatsoever with respect to any and all of the GM PENSION LIABILITY and from all actions, causes of action, suits, debts, dues, sums of money, expenses, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, costs, judgments, executions, obligations, losses, liabilities, claims and demands whatsoever, whether in law or equity, whether direct or indirect, whether for indemnity or contribution, whether fixed or contingent, whether such be presently known or unknown, suspected or unsuspected, whether or not hidden or concealed, which PBGC and its successors and assigns ever had, now have, or may have in the future against any of the EDS RELEASEES and EDS TRANSFEREES with respect to such GM PENSION LIABILITY, 138 immediately upon the TRANSACTION DATE and provided there has been no EXCESSIVE TRANSFER under section 9(e) of the AGREEMENT that remains unresolved under section 9(f) of the AGREEMENT; provided, however, that there shall be no release to the extent specified in section 13(h) of the Agreement or in the event of an Excessive Transfer where GM waives releases pursuant to section 9(f)(ii) of the Agreement; provided further, that there shall be no release of the EDS TRANSFEREES in the event of a MATERIAL TRANSFER consisting of stock of any single GM SUBSIDIARY that has a fair value greater than $3 billion (other than a GM SUBSIDIARY that is transferred in a MATERIAL TRANSFER described in section 9(e)(1)(D) of the AGREEMENT) and that is not a member of GM's CONTROLLED GROUP and is a member of EDS's CONTROLLED GROUP on the TRANSACTION DATE; and provided further, that there shall be no release of the EDS RELEASEES for an amount and to the extent specified in section 9(f)(i)(D) of the AGREEMENT if GM elects Releases and Covenants Not to Sue under section 9(f)(i)(D)(i) of the Agreement. 2. PBGC covenants never to initiate or pursue against any person (including without limitation, the EDS RELEASEES, EDS TRANSFEREES, GM, all persons within GM's CONTROLLED GROUP, the GM PENSION PLANS, and the fiduciaries and administrators of the GM PENSION PLANS) any administrative, judicial or other proceeding, specifically including without limitation any proceeding under section 4042 or 4069 of ERISA, 29 U.S.C. Section 1342 or 1369, or to - 2 - 139 threaten or assert an intention to initiate any such proceeding, or to seek any other equitable or legal relief, by reason of (i) any QUALIFIED EDS TRANSACTION, (ii) any transaction in a series of transactions that constitutes, is reasonably related to, or is reasonably necessary to effect, a QUALIFIED EDS TRANSACTION, or (iii) any transfer from GM or a GM SUBSIDIARY of assets, operations or securities (including stock of any type) to or into EDS or an EDS SUBSIDIARY, that occurs prior to the TRANSACTION DATE or in conjunction with a QUALIFIED EDS TRANSACTION; provided, however, that PBGC's Covenant Not To Sue under this paragraph 2 shall not (A) extend to, or restrict PBGC's rights under Title IV of ERISA, if any, to the extent such rights are not released pursuant to paragraph 1 above, and subject to section 9(f)(iii) of the Agreement, if any single GM SUBSIDIARY that has a fair value greater than $3 billion is not or will no longer be a member of GM's CONTROLLED GROUP immediately after the TRANSACTION DATE and is not or will no longer be a member of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE, or (B) extend to, or restrict PBGC's exercise of, any rights or remedies PBGC may have with respect to an EXCESSIVE TRANSFER that has not been resolved under section 9(f)(i) of the Agreement to the extent such rights or remedies are expressly provided under section 9(h) of the AGREEMENT, or (C) extend to, or restrict PBGC's exercise of its rights under Title IV of ERISA, if any, including its rights, if any, under section 4069(a) of ERISA, 29 U.S.C. Section 1369(a), after the - 3 - 140 TRANSACTION DATE, against the EDS RELEASEES for an amount and to the extent specified in section 9(f)(i)(D) if GM elects Releases and Covenants Not To Sue under section 9(f)(i)(D)(i) of the Agreement, or (D) extend to, or restrict PBGC's exercise of its rights under Title IV of ERISA, if any, including its rights, if any, under section 4069(a) of ERISA, 29 U.S.C. Section 1369(a), after the TRANSACTION DATE to the extent specified in section 9(f)(i)(D) of the AGREEMENT as against the corporation(s), if any, that GM elects not to include as an EDS RELEASEE under section 9(f)(i)(D)(ii) if GM elects Releases and Covenants Not To Sue under section 9(f)(i)(D)(ii) of the AGREEMENT, or (E) extend to, or restrict PBGC's exercise of its rights under Title IV of ERISA, if any, including its rights, if any, under section 4069(a) of ERISA, 29 U.S.C. Section 1369(a), against any person other than the EDS RELEASEES if any single GM Subsidiary that has a fair value greater than $3 billion (other than a GM SUBSIDIARY that is transferred in a MATERIAL TRANSFER described in section 9(e)(1)(D) of the AGREEMENT) is not or will no longer be a member of GM's CONTROLLED GROUP immediately after the TRANSACTION DATE and is or will be a member of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE, or (F) extend to or restrict PBGC's exercise of its rights, if any, against any person in the event of an Excessive Transfer under section 9(e) of the AGREEMENT where GM waives releases pursuant to section 9(f)(ii) of the AGREEMENT, or (G) extend to or restrict PBGC's exercise of its - 4 - 141 rights, if any, to the extent specified in section 13(h) of the AGREEMENT. 3. If, during the three-consecutive-year period ending on the TRANSACTION DATE, there are MATERIAL TRANSFERS consisting of stock of NEWSUBS that have an aggregate fair value greater than $6 billion and that, immediately after the TRANSACTION DATE, are no longer member(s) of GM's CONTROLLED GROUP and are members of EDS's CONTROLLED GROUP, then all such MATERIAL TRANSFERS shall be aggregated and treated the same as a MATERIAL TRANSFER consisting of stock of a single GM SUBSIDIARY that has a fair value greater than $3 billion and that is not a member of GM's CONTROLLED GROUP on the TRANSACTION DATE and is a member of EDS's CONTROLLED GROUP on the TRANSACTION DATE for purposes of paragraph 2(E) above. Any MATERIAL TRANSFERS consisting of stock of NEWSUBS that are not made during the three-consecutive-year period noted above shall not be aggregated and treated as provided for in the preceding sentence, nor shall such MATERIAL TRANSFERS be taken into account in applying the $6 billion threshold set forth in the preceding sentence, but such MATERIAL TRANSFERS shall be treated as MATERIAL TRANSFERS to the extent otherwise provided under the AGREEMENT. If the period beginning May 9, 1994, and ending on the TRANSACTION DATE is shorter than three years, then such shorter period shall be substituted for the three-consecutive-year period described above. - 5 - 142 4. CONTRIBUTED SHARES means those shares of GM Class E Stock contributed pursuant to section 2 of the AGREEMENT. CONTRIBUTED SHARES do not include EXCHANGED SHARES. 5. CONTRIBUTING SPONSOR has the meaning set forth in section 4001(a)(13) of ERISA. 6. CONTRIBUTION DATE with respect to a security or asset means the date as of which that security or asset is deemed contributed to the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the Internal Revenue Code of 1986, as amended ("CODE"). 7. CONTROLLED GROUP has the meaning set forth in section 4001(a)(14) of ERISA. 8. EDS means Electronic Data Systems Corporation, a Texas corporation that currently is a wholly-owned subsidiary of RGR Holdings, Inc. ("RGR HOLDINGS, INC."), a Delaware corporation that in turn is a wholly-owned subsidiary of GM. 9. EDS FUTURE AFFILIATES means any person that becomes a member of a CONTROLLED GROUP with EDS after the TRANSACTION DATE, other than a person that is or was at any time a member of GM's CONTROLLED GROUP. 10. EDS PLANS means the Electronic Data Systems Corporation Retirement Plan, and every other defined benefit pension plan (if - 6 - 143 any) covered by Title IV of ERISA for which EDS, an EDS SUBSIDIARY or an EDS RELEASEE is a CONTRIBUTING SPONSOR. 11. EDS RELEASEES means EDS plus RGR HOLDINGS, INC., plus the EDS SUBSIDIARIES plus the EDS FUTURE AFFILIATES, plus any person identified in part (i) or (ii) of the definition of EDS SUBSIDIARIES that is not in EDS's CONTROLLED GROUP as of the TRANSACTION DATE but is transferred in whole or in part to a third party in conjunction with a QUALIFIED EDS TRANSACTION or in a transaction reasonably related to or reasonably necessary to effect a QUALIFIED EDS TRANSACTION, plus each and all of the agents, advisors, legal counsel, partners, joint venturers, officers, directors and assigns of any of the foregoing persons or any of them. Notwithstanding the foregoing, the term "EDS RELEASEES" shall not include (i) GM or any other person that was a member of GM's CONTROLLED GROUP before the TRANSACTION DATE and continues without interruption to be a member of GM's CONTROLLED GROUP immediately following the TRANSACTION DATE, or (ii) if GM elects to receive alternative Releases and Covenants Not to Sue pursuant to section 9(f)(i)(D)(ii) of the AGREEMENT, the corporation(s), if any, that are not released under section 9(f)(i)(D)(ii) of the AGREEMENT. 12. EDS SUBSIDIARIES means (i) the persons listed on Appendix S to the AGREEMENT, all of which are owned, directly or indirectly, by EDS as of the EFFECTIVE DATE plus - 7 - 144 (ii) the additional persons, if any, in which EDS acquires a "controlling interest" within the meaning of Treas. Reg. Section 1.414(c)-(2)(b)(2) after the EFFECTIVE DATE and on or before the TRANSACTION DATE provided that those persons are members of EDS's CONTROLLED GROUP as of the TRANSACTION DATE. 13. EDS TRANSFEREE means any purchaser or other direct or indirect transferee of any or all of the stock or assets of any of the EDS RELEASEES, by way of purchase, sale, assignment, pledge, exchange, conversion, merger, consolidation, amalgamation or otherwise, and each of their parent organizations, subsidiary organizations, successors and assigns (whether present or future), or any of them (whether or not incorporated), and each and all of their agents, advisors, legal counsel, fiduciaries, partners, joint venturers, officers, directors and assigns, or any of them, but specifically excluding (i) any person who is, after the TRANSACTION DATE, a member of GM's CONTROLLED GROUP, and (ii) if GM elects to receive alternative Releases and Covenants Not to Sue pursuant to section 9(f)(i)(D)(ii) of the AGREEMENT, the corporation(s), if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT, and (iii) any GM SUBSIDIARY that is not a member of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE. 14. EMPLOYER SECURITY has the meaning set forth in section 407(d)(1) of ERISA. - 8 - 145 15. ERISA LIMITS means, with respect to EMPLOYER SECURITIES held by the HOURLY PLAN at the time application of the term "ERISA LIMITS" is at issue, that: (i) the aggregate fair market value of all EMPLOYER SECURITIES held by the HOURLY PLAN does not exceed 10 percent of the fair market value of the assets of the HOURLY PLAN at such time; (ii) no more than 25 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by the HOURLY PLAN at such time; and (iii) at least 50 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by persons independent of the issuer at such time. 16. EXCESSIVE TRANSFER has the meaning set forth in section 9(e) of the AGREEMENT. 17. EXCHANGED SHARES means shares, if any, received by the HOURLY PLAN in exchange for, or upon conversion or redemption of, the CONTRIBUTED SHARES. 18. FUNDING STANDARD ACCOUNT means the funding standard account maintained for the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the CODE. 19. GM PENSION LIABILITY means any and all liabilities or obligations now existing, or hereafter arising, to PBGC (on its own behalf, as trustee for any plan, or in any other capacity) or to the GM PENSION PLANS under Title IV of ERISA with respect to - 9 - 146 the GM PENSION PLANS or the termination of the GM PENSION PLANS, including without limitation any liability under section 302 of Title I of ERISA or under Title IV of ERISA (including without limitation, any lien, liability, or obligation under section 4042, 4062, 4068 or 4069 of ERISA, 29 U.S.C. Section 1342, 1362, 1368 or 1369). 20. GM PENSION PLANS means every defined benefit pension plan covered by Title IV of ERISA for which GM or a GM SUBSIDIARY is a CONTRIBUTING SPONSOR as of or at any time prior to or at any time after the TRANSACTION DATE, provided, however, that GM PENSION PLANS shall not include any plans for which EDS or an EDS SUBSIDIARY is a CONTRIBUTING SPONSOR. 21. GM SHARE means an equity security issued by GM, including without limitation a share of GM Class E Stock. GM SHARES do not include shares or securities issued by persons other than GM that are received in exchange for, or upon conversion or redemption of, GM SHARES. 22. GM SUBSIDIARY means each and every person that is or was at any time on or after May 9, 1994, a member of GM's CONTROLLED GROUP, except for EDS, RGR HOLDINGS, INC., and the EDS SUBSIDIARIES listed on Appendix S to the AGREEMENT. 23. HOURLY PLAN means the General Motors Hourly-Rate Employees Pension Plan (Employer Identification number 38-0572515, plan number 003). - 10 - 147 24. MATERIAL TRANSFER has the meaning set forth in the AGREEMENT. 25. NEWSUB has the meaning set forth in the AGREEMENT. 26. QUALIFIED EDS TRANSACTION means any transaction or series of transactions (including without limitation any transaction or series of transactions by which GM Class E Stock is exchanged, converted or redeemed for capital stock of EDS) by which EDS ceases to be a member of GM's CONTROLLED GROUP, unless, immediately after the TRANSACTION DATE (i) more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, and (ii) more than 5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. Notwithstanding the foregoing, even if immediately after the TRANSACTION DATE, more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM Shares and more than 5% of the Then- Current Fair Market Value of the Hourly Plan's assets consists of EMPLOYER SECURITIES, such transaction nonetheless will become a QUALIFIED EDS TRANSACTION if and upon any later date that falls not more than 120 days after the TRANSACTION DATE either (i) no more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, or (ii) no more than 5% of the Then-Current Fair Market Value of the - 11 - 148 HOURLY PLAN's assets consists of EMPLOYER SECURITIES. For purposes of this definition of QUALIFIED EDS TRANSACTION, in determining whether the 5% limit is exceeded, any security that would otherwise constitute an EMPLOYER SECURITY and that is contributed to the HOURLY PLAN after the last CONTRIBUTION DATE for the CONTRIBUTED SHARES shall be deemed to be a Non-employer Security if (i) the contribution of such security is within the ERISA LIMITS, and (ii) the credit balance in the FUNDING STANDARD ACCOUNT resulting from the contribution of such security is still unused on the TRANSACTION DATE. 27. TRANSACTION DATE with respect to the QUALIFIED EDS TRANSACTION (including a transaction that becomes a QUALIFIED EDS TRANSACTION) means the date on which EDS ceases to be a member of GM's CONTROLLED GROUP. 28. This Release and Covenant Not to Sue shall not be affected by (i) any amendment, modification, termination, or waiver of the AGREEMENT, except as specifically provided in a written amendment to this Release and Covenant Not to Sue executed by GM and PBGC on or before the TRANSACTION DATE, or in a written amendment to this Release and Covenant Not to Sue executed by GM, PBGC and EDS after the TRANSACTION DATE, (ii) any determination with respect to the AGREEMENT, including without limitation any determination that said AGREEMENT is not valid or enforceable in whole or in part, so long as the material provisions of sections 4 through 7 of the AGREEMENT are not - 12 - 149 invalidated by a court of law before the TRANSACTION DATE or, if they are invalidated in whole or in part by a court of law before the TRANSACTION DATE, GM in its sole discretion agrees, in a writing enforceable by the PBGC to the same extent as provided in the Agreement, to abide by those provisions, or (iii) any breach by GM or PBGC of the AGREEMENT. 29. Except to the extent expressly provided in paragraphs 1, 2 and 3 above, this Release and Covenant Not to Sue shall not affect the rights, if any, of any party with respect to, or under, or to enforce the provisions of, the AGREEMENT. 30. This Release and Covenant Not to Sue shall be governed by the laws of the District of Columbia and by ERISA, the CODE and other laws of the United States to the extent they preempt District of Columbia law. 31. Nothing in this Release and Covenant Not to Sue shall be construed as an admission by or on behalf of any person identified herein that any liabilities or obligations are now owed to PBGC or a GM PENSION PLAN, or may be owed to PBGC or a GM PENSION PLAN in the future, by that person. Nothing in this Release and Covenant Not to Sue shall be construed as an admission by any person that PBGC has, or will have, rights to legal or equitable relief in connection with any transaction involving EDS, regardless of whether such transaction is a QUALIFIED EDS TRANSACTION. - 13 - 150 32. Notwithstanding anything in this Release and Covenant Not to Sue, once released from the GM PENSION LIABILITY as a result of this Release and Covenant Not to Sue, any EDS RELEASEE that reenters GM's CONTROLLED GROUP and any EDS TRANSFEREE that enters or reenters GM's CONTROLLED GROUP may, by reentering or entering the GM CONTROLLED GROUP, become subject to the GM PENSION LIABILITY to the extent otherwise provided by law. 33. Nothing in this Release and Covenant Not to Sue shall be construed to restrict, enlarge or otherwise affect PBGC's rights, if any, against any person (including any EDS RELEASEE or any EDS TRANSFEREE) with respect to transactions or events occurring after the TRANSACTION DATE and not in connection with a QUALIFIED EDS TRANSACTION. 34. Nothing in this Release and Covenant Not to Sue shall be construed to release any of the EDS RELEASEES, EDS SUBSIDIARIES or EDS TRANSFEREES from their obligations, if any, respecting the EDS PLANS. 35. The undersigned represents and warrants that he has full power and authority to execute this Release and Covenant Not to Sue on behalf of PBGC, and to make the following representations on behalf of PBGC. PBGC is a wholly-owned United States government corporation established under Title IV of ERISA. PBGC has full power and authority to enter into and perform its obligations under this Release and Covenant Not to - 14 - 151 Sue. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue, have been duly authorized by all necessary corporate action and are within PBGC's statutory authorization and authority. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue: (i) will not violate in any material respect any law applicable to PBGC or any of its properties; and (ii) will not violate any provision of Title IV of ERISA or PBGC's By-Laws, other applicable statutes, regulations and rules governing PBGC, or any material contract or agreement which is binding on PBGC or its properties. PENSION BENEFIT GUARANTY CORPORATION By: --------------------------------- MARTIN SLATE Its Executive Director SUBSCRIBED AND SWORN TO BEFORE ME THIS ____ DAY OF ____________, 1995 - 15 - 152 [APPENDIX R2] RELEASE AND COVENANT NOT TO SUE 1. In consideration of the terms, conditions, mutual covenants and agreements set forth in the Agreement made as of March 3, 1995 (the "EFFECTIVE DATE"), by and between General Motors Corporation ("GM") and the Pension Benefit Guaranty Corporation ("PBGC") (the "AGREEMENT"), the adequacy and sufficiency of which are hereby acknowledged, the PBGC, a wholly-owned United States government corporation created by section 4002(b) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. Section 1302(b), on its own behalf and in every other capacity in which it may now or in the future act, releases and forever discharges each of the EDS RELEASEES from any claim whatsoever with respect to any and all of the GM PENSION LIABILITY and from all actions, causes of action, suits, debts, dues, sums of money, expenses, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, costs, judgments, executions, obligations, losses, liabilities, claims and demands whatsoever, whether in law or equity, whether direct or indirect, whether for indemnity or contribution, whether fixed or contingent, whether such be presently known or unknown, suspected or unsuspected, whether or not hidden or concealed, which PBGC and its successors and assigns ever had, now have, or may have in the future against any of the EDS RELEASEES with respect to such GM PENSION LIABILITY. 153 2. PBGC covenants never to initiate or pursue against any person (including without limitation, the EDS RELEASEES, EDS TRANSFEREES, GM, all persons within GM's CONTROLLED GROUP, the GM PENSION PLANS, and the fiduciaries and administrators of the GM PENSION PLANS) any administrative, judicial or other proceeding, specifically including without limitation any proceeding under section 4042 or 4069 of ERISA, 29 U.S.C. Section 1342 or 1369, or to threaten or assert an intention to initiate any such proceeding, or to seek any other equitable or legal relief, by reason of (i) any QUALIFIED EDS TRANSACTION, (ii) any transaction in a series of transactions that constitutes, is reasonably related to, or is reasonably necessary to effect, a QUALIFIED EDS TRANSACTION, or (iii) any transfer from GM or a GM SUBSIDIARY of assets, operations or securities (including stock of any type) to or into EDS or an EDS SUBSIDIARY, that occurs prior to the TRANSACTION DATE or in conjunction with a QUALIFIED EDS TRANSACTION; provided, however, that PBGC's Covenant Not to Sue under this paragraph 2 shall not extend to or restrict PBGC's exercise of its rights, if any, against GM with respect to a material misrepresentation by GM in a certification described in section 9(c)(2)(A), 9(c)(2)(E), 9(c)(3)(ii)(A), 9(c)(3)(ii)(B)(II) or 9(c)(3)(ii)(B)(III) of the Agreement where such material misrepresentation was reasonably relied upon by PBGC and resulted in material prejudice to PBGC, provided such claim is asserted in a lawsuit filed against GM within the nine- - 2 - 154 month period beginning on the later of the TRANSACTION DATE or the date a transaction becomes a QUALIFIED EDS TRANSACTION. 3. CONTRIBUTED SHARES means those shares of GM Class E Stock contributed pursuant to section 2 of the AGREEMENT. CONTRIBUTED SHARES do not include EXCHANGED SHARES. 4. CONTRIBUTING SPONSOR has the meaning set forth in section 4001(a)(13) of ERISA. 5. CONTRIBUTION DATE with respect to a security or asset means the date as of which that security or asset is deemed contributed to the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the Internal Revenue Code of 1986, as amended ("CODE"). 6. CONTROLLED GROUP has the meaning set forth in section 4001(a)(14) of ERISA. 7. EDS means Electronic Data Systems Corporation, a Texas corporation that currently is a wholly-owned subsidiary of RGR Holdings, Inc. ("RGR HOLDINGS, INC."), a Delaware corporation that in turn is a wholly-owned subsidiary of GM. 8. EDS FUTURE AFFILIATES means any person that becomes a member of a CONTROLLED GROUP with EDS after the TRANSACTION DATE, other than a person that is or was at any time a member of GM's CONTROLLED GROUP. - 3 - 155 9. EDS PLANS means the Electronic Data Systems Corporation Retirement Plan, and every other defined benefit pension plan (if any) covered by Title IV of ERISA for which EDS, an EDS SUBSIDIARY or an EDS RELEASEE is a CONTRIBUTING SPONSOR. 10. EDS RELEASEES means EDS plus RGR HOLDINGS, INC., plus the EDS SUBSIDIARIES plus the EDS FUTURE AFFILIATES, plus any person identified in part (i) or (ii) of the definition of EDS SUBSIDIARIES that is not in EDS's CONTROLLED GROUP as of the TRANSACTION DATE but is transferred in whole or in part to a third party in conjunction with a QUALIFIED EDS TRANSACTION or in a transaction reasonably related to or reasonably necessary to effect a QUALIFIED EDS TRANSACTION, plus each and all of the agents, advisors, legal counsel, partners, joint venturers, officers, directors and assigns of any of the foregoing persons or any of them. Notwithstanding the foregoing, the term "EDS RELEASEES" shall not include GM or any other person that was a member of GM's CONTROLLED GROUP before the TRANSACTION DATE and continues without interruption to be a member of GM's CONTROLLED GROUP immediately following the TRANSACTION DATE. 11. EDS SUBSIDIARIES means (i) the persons listed on Appendix S to the AGREEMENT, all of which are owned, directly or indirectly, by EDS as of the EFFECTIVE DATE plus (ii) the additional persons, if any, in which EDS acquires a "controlling interest" within the meaning of Treas. Reg. Section 1.414(c)-(2)(b)(2) after the EFFECTIVE DATE and on or before the TRANSACTION DATE - 4 - 156 provided that those persons are members of EDS's CONTROLLED GROUP as of the TRANSACTION DATE. 12. EDS TRANSFEREE means any purchaser or other direct or indirect transferee of any or all of the stock or assets of any of the EDS RELEASEES, by way of purchase, sale, assignment, pledge, exchange, conversion, merger, consolidation, amalgamation or otherwise, and each of their parent organizations, subsidiary organizations, successors and assigns (whether present or future), or any of them (whether or not incorporated), and each and all of their agents, advisors, legal counsel, fiduciaries, partners, joint venturers, officers, directors and assigns, or any of them, but specifically excluding (i) any person who is, after the TRANSACTION DATE, a member of GM's CONTROLLED GROUP, and (ii) any GM SUBSIDIARY that is not a member of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE. 13. EMPLOYER SECURITY has the meaning set forth in section 407(d)(1) of ERISA. 14. ERISA LIMITS means, with respect to EMPLOYER SECURITIES held by the HOURLY PLAN at the time application of the term "ERISA LIMITS" is at issue, that: (i) the aggregate fair market value of all EMPLOYER SECURITIES held by the HOURLY PLAN does not exceed 10 percent of the fair market value of the assets of the HOURLY PLAN at such time; (ii) no more than 25 percent of the aggregate amount of stock of the same class of EMPLOYER - 5 - 157 SECURITIES issued and outstanding is held by the HOURLY PLAN at such time; and (iii) at least 50 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by persons independent of the issuer at such time. 15. EXCHANGED SHARES means shares, if any, received by the HOURLY PLAN in exchange for, or upon conversion or redemption of, the CONTRIBUTED SHARES. 16. FUNDING STANDARD ACCOUNT means the funding standard account maintained for the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the CODE. 17. GM PENSION LIABILITY means any and all liabilities or obligations now existing, or hereafter arising, to PBGC (on its own behalf, as trustee for any plan, or in any other capacity) or to the GM PENSION PLANS under Title IV of ERISA with respect to the GM PENSION PLANS or the termination of the GM PENSION PLANS, including without limitation any liability under section 302 of Title I of ERISA or under Title IV of ERISA (including without limitation, any lien, liability, or obligation under section 4042, 4062, 4068 or 4069 of ERISA, 29 U.S.C. Section 1342, 1362, 1368 or 1369). 18. GM PENSION PLANS means every defined benefit pension plan covered by Title IV of ERISA for which GM or a GM SUBSIDIARY is a CONTRIBUTING SPONSOR as of or at any time prior to or at any - 6 - 158 time after the TRANSACTION DATE, provided, however, that GM PENSION PLANS shall not include any plans for which EDS or an EDS SUBSIDIARY is a CONTRIBUTING SPONSOR. 19. GM SHARE means an equity security issued by GM, including without limitation a share of GM Class E Stock. GM SHARES do not include shares or securities issued by persons other than GM that are received in exchange for, or upon conversion or redemption of, GM SHARES. 20. GM SUBSIDIARY means each and every person that is or was at any time on or after May 9, 1994, a member of GM's CONTROLLED GROUP, except for EDS, RGR HOLDINGS, INC., and the EDS SUBSIDIARIES listed on Appendix S to the AGREEMENT. 21. HOURLY PLAN means the General Motors Hourly-Rate Employees Pension Plan (Employer Identification number 38-0572515, plan number 003). 22. QUALIFIED EDS TRANSACTION means any transaction or series of transactions (including without limitation any transaction or series of transactions by which GM Class E Stock is exchanged, converted or redeemed for capital stock of EDS) by which EDS ceases to be a member of GM's CONTROLLED GROUP, unless, immediately after the TRANSACTION DATE (i) more than 2.5% of the Then-Current Fair Market - 7 - 159 Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, and (ii) more than 5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. Notwithstanding the foregoing, even if immediately after the TRANSACTION DATE, more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM Shares and more than 5% of the Then- Current Fair Market Value of the Hourly Plan's assets consists of EMPLOYER SECURITIES, such transaction nonetheless will become a QUALIFIED EDS TRANSACTION if and upon any later date that falls not more than 120 days after the TRANSACTION DATE either (i) no more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, or (ii) no more than 5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. For purposes of this definition of QUALIFIED EDS TRANSACTION, in determining whether the 5% limit is exceeded, any security that would otherwise constitute an EMPLOYER SECURITY and that is contributed to the HOURLY PLAN after the last CONTRIBUTION DATE for the CONTRIBUTED SHARES shall be deemed to be a Non-employer Security if (i) the contribution of such security is within the ERISA LIMITS, and (ii) the credit balance in the FUNDING STANDARD ACCOUNT resulting from the contribution of such security is still unused on the TRANSACTION DATE. 23. TRANSACTION DATE with respect to the QUALIFIED EDS TRANSACTION (including a transaction that becomes a QUALIFIED EDS - 8 - 160 TRANSACTION) means [insert the date on which EDS ceases to be a member of GM's CONTROLLED GROUP, if known, or if not known, insert the following: "the date on which EDS ceases to be a member of GM's CONTROLLED GROUP"]. 24. This Release and Covenant Not to Sue shall not be affected by (i) any amendment, modification, termination, or waiver of the AGREEMENT, (ii) any determination with respect to the AGREEMENT, including without limitation any determination that said AGREEMENT is not valid or enforceable in whole or in part, or (iii) any breach by GM or PBGC of the AGREEMENT. 25. Except to the extent expressly provided in paragraphs 1 and 2 above, this Release and Covenant Not to Sue shall not affect the rights, if any, of any party with respect to, or under, or to enforce the provisions of, the AGREEMENT. 26. This Release and Covenant Not to Sue shall be governed by the laws of the District of Columbia and by ERISA, the CODE and other laws of the United States to the extent they preempt District of Columbia law. 27. Nothing in this Release and Covenant Not to Sue shall be construed as an admission by or on behalf of any person identified herein that any liabilities or obligations are now owed to PBGC or a GM PENSION PLAN, or may be owed to PBGC or a GM PENSION PLAN in the future, by that person. Nothing in this Release and Covenant Not to Sue shall be construed as an - 9 - 161 admission by any person that PBGC has, or will have, rights to legal or equitable relief in connection with any transaction involving EDS, regardless of whether such transaction is a QUALIFIED EDS TRANSACTION. 28. Notwithstanding anything in this Release and Covenant Not to Sue, once released from the GM PENSION LIABILITY as a result of this Release and Covenant Not to Sue, any EDS RELEASEE that reenters GM's CONTROLLED GROUP and any EDS TRANSFEREE that enters or reenters GM's CONTROLLED GROUP may, by reentering or entering the GM CONTROLLED GROUP, become subject to the GM PENSION LIABILITY to the extent otherwise provided by law. 29. Nothing in this Release and Covenant Not to Sue shall be construed to restrict, enlarge or otherwise affect PBGC's rights, if any, against any person (including any EDS RELEASEE or any EDS TRANSFEREE) with respect to transactions or events occurring after the TRANSACTION DATE and not in connection with a QUALIFIED EDS TRANSACTION. 30. Nothing in this Release and Covenant Not to Sue shall be construed to release any of the EDS RELEASEES, EDS SUBSIDIARIES or EDS TRANSFEREES from their obligations, if any, respecting the EDS PLANS. 31. This Release and Covenant Not to Sue, together with the Release and Covenant Not to Sue in the form of Appendix R3 to the AGREEMENT executed by the undersigned, supersede the Release and - 10 - 162 Covenant Not to Sue executed by the undersigned on [insert date], a copy of which is attached hereto as Appendix R1. 32. The undersigned represents and warrants that he has full power and authority to execute this Release and Covenant Not to Sue on behalf of PBGC, and to make the following representations on behalf of PBGC. PBGC is a wholly-owned United States government corporation established under Title IV of ERISA. PBGC has full power and authority to enter into and perform its obligations under this Release and Covenant Not to Sue. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue, have been duly authorized by all necessary corporate action and are within PBGC's statutory authorization and authority. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue: (i) will not violate in any material respect any law applicable to PBGC or any of its properties; and (ii) will not violate any provision of Title IV of ERISA or PBGC's By-Laws, other applicable statutes, regulations and rules governing PBGC, or any material contract or agreement which is binding on PBGC or its properties. - 11 - 163 PENSION BENEFIT GUARANTY CORPORATION By: --------------------------------- MARTIN SLATE Its Executive Director SUBSCRIBED AND SWORN TO BEFORE ME THIS ____ DAY OF ____________, 1995 - 12 - 164 [APPENDIX R3] RELEASE AND COVENANT NOT TO SUE 1. In consideration of the terms, conditions, mutual covenants and agreements set forth in the Agreement made as of March 3, 1995 (the "EFFECTIVE DATE"), by and between General Motors Corporation ("GM") and the Pension Benefit Guaranty Corporation ("PBGC") (the "AGREEMENT"), the adequacy and sufficiency of which are hereby acknowledged, the PBGC, a wholly-owned United States government corporation created by section 4002(b) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. Section 1302(b), on its own behalf and in every other capacity in which it may now or in the future act, releases and forever discharges each of the EDS TRANSFEREES, including without limitation [INSERT NAMES OF SPECIFIC EDS TRANSFEREES, IF ANY, IDENTIFIED BY GM AT THE TIME OF EXECUTION AND DELIVERY], from any claim whatsoever with respect to any and all of the GM PENSION LIABILITY and from all actions, causes of action, suits, debts, dues, sums of money, expenses, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, costs, judgments, executions, obligations, losses, liabilities, claims and demands whatsoever, whether in law or equity, whether direct or indirect, whether for indemnity or contribution, whether fixed or contingent, whether such be presently known or unknown, suspected or unsuspected, whether or not hidden or concealed, which PBGC and its successors and assigns ever had, now have, or 165 may have in the future against any of the EDS TRANSFEREES, including without limitation [INSERT NAMES OF SPECIFIC EDS TRANSFEREES, IF ANY, IDENTIFIED BY GM AT THE TIME OF EXECUTION AND DELIVERY], with respect to such GM PENSION LIABILITY. 2. PBGC covenants never to initiate or pursue against any person (including without limitation, the EDS RELEASEES, EDS TRANSFEREES, GM, all persons within GM's CONTROLLED GROUP, the GM PENSION PLANS, and the fiduciaries and administrators of the GM PENSION PLANS) any administrative, judicial or other proceeding, specifically including without limitation any proceeding under section 4042 or 4069 of ERISA, 29 U.S.C. Section 1342 or 1369, or to threaten or assert an intention to initiate any such proceeding, or to seek any other equitable or legal relief, by reason of (i) any QUALIFIED EDS TRANSACTION, (ii) any transaction in a series of transactions that constitutes, is reasonably related to, or is reasonably necessary to effect, a QUALIFIED EDS TRANSACTION, or (iii) any transfer from GM or a GM SUBSIDIARY of assets, operations or securities (including stock of any type) to or into EDS or an EDS SUBSIDIARY, that occurs prior to the TRANSACTION DATE or in conjunction with a QUALIFIED EDS TRANSACTION; provided, however, that PBGC's Covenant Not to Sue under this paragraph 2 shall not extend to or restrict PBGC's exercise of its rights, if any, against GM with respect to a material misrepresentation by GM in a certification described in section 9(c)(2)(A), 9(c)(2)(E), 9(c)(3)(ii)(A), - 2 - 166 9(c)(3)(ii)(B)(II) or 9(c)(3)(ii)(B)(III) of the Agreement where such material misrepresentation was reasonably relied upon by PBGC and resulted in material prejudice to PBGC, provided such claim is asserted in a lawsuit filed against GM within the nine-month period beginning on the later of the TRANSACTION DATE or the date a transaction becomes a QUALIFIED EDS TRANSACTION. 3. CONTRIBUTED SHARES means those shares of GM Class E Stock contributed pursuant to section 2 of the AGREEMENT. CONTRIBUTED SHARES do not include EXCHANGED SHARES. 4. CONTRIBUTING SPONSOR has the meaning set forth in section 4001(a)(13) of ERISA. 5. CONTRIBUTION DATE with respect to a security or asset means the date as of which that security or asset is deemed contributed to the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the Internal Revenue Code of 1986, as amended ("CODE"). 6. CONTROLLED GROUP has the meaning set forth in section 4001(a)(14) of ERISA. 7. EDS means Electronic Data Systems Corporation, a Texas corporation that currently is a wholly-owned subsidiary of RGR Holdings, Inc. ("RGR HOLDINGS, INC."), a Delaware corporation that in turn is a wholly-owned subsidiary of GM. - 3 - 167 8. EDS FUTURE AFFILIATES means any person that becomes a member of a CONTROLLED GROUP with EDS after the TRANSACTION DATE, other than a person that is or was at any time a member of GM's CONTROLLED GROUP. 9. EDS PLANS means the Electronic Data Systems Corporation Retirement Plan, and every other defined benefit pension plan (if any) covered by Title IV of ERISA for which EDS, an EDS SUBSIDIARY or an EDS RELEASEE is a CONTRIBUTING SPONSOR. 10. EDS RELEASEES means EDS plus RGR HOLDINGS, INC., plus the EDS SUBSIDIARIES plus the EDS FUTURE AFFILIATES, plus any person identified in part (i) or (ii) of the definition of EDS SUBSIDIARIES that is not in EDS's CONTROLLED GROUP as of the TRANSACTION DATE but is transferred in whole or in part to a third party in conjunction with a QUALIFIED EDS TRANSACTION or in a transaction reasonably related to or reasonably necessary to effect a QUALIFIED EDS TRANSACTION, plus each and all of the agents, advisors, legal counsel, partners, joint venturers, officers, directors and assigns of any of the foregoing persons or any of them. Notwithstanding the foregoing, the term "EDS RELEASEES" shall not include GM or any other person that was a member of GM's CONTROLLED GROUP before the TRANSACTION DATE and continues without interruption to be a member of GM's CONTROLLED GROUP immediately following the TRANSACTION DATE. 11. EDS SUBSIDIARIES means - 4 - 168 (i) the persons listed on Appendix S to the AGREEMENT, all of which are owned, directly or indirectly, by EDS as of the EFFECTIVE DATE plus (ii) the additional persons, if any, in which EDS acquires a "controlling interest" within the meaning of Treas. Reg. Section 1.414(c)-(2)(b)(2) after the EFFECTIVE DATE and on or before the TRANSACTION DATE provided that those persons are members of EDS's CONTROLLED GROUP as of the TRANSACTION DATE. 12. EDS TRANSFEREE means any purchaser or other direct or indirect transferee of any or all of the stock or assets of any of the EDS RELEASEES, by way of purchase, sale, assignment, pledge, exchange, conversion, merger, consolidation, amalgamation or otherwise, and each of their parent organizations, subsidiary organizations, successors and assigns (whether present or future), or any of them (whether or not incorporated), and each and all of their agents, advisors, legal counsel, fiduciaries, partners, joint venturers, officers, directors and assigns, or any of them, but specifically excluding (i) any person who is, after the TRANSACTION DATE, a member of GM's CONTROLLED GROUP, and (ii) any GM SUBSIDIARY that is not a member of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE. 13. EMPLOYER SECURITY has the meaning set forth in section 407(d)(1) of ERISA. 14. ERISA LIMITS means, with respect to EMPLOYER SECURITIES held by the HOURLY PLAN at the time application of the term "ERISA LIMITS" is at issue, that: (i) the aggregate fair market - 5 - 169 value of all EMPLOYER SECURITIES held by the HOURLY PLAN does not exceed 10 percent of the fair market value of the assets of the HOURLY PLAN at such time; (ii) no more than 25 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by the HOURLY PLAN at such time; and (iii) at least 50 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by persons independent of the issuer at such time. 15. EXCHANGED SHARES means shares, if any, received by the HOURLY PLAN in exchange for, or upon conversion or redemption of, the CONTRIBUTED SHARES. 16. FUNDING STANDARD ACCOUNT means the funding standard account maintained for the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the CODE. 17. GM PENSION LIABILITY means any and all liabilities or obligations now existing, or hereafter arising, to PBGC (on its own behalf, as trustee for any plan, or in any other capacity) or to the GM PENSION PLANS under Title IV of ERISA with respect to the GM PENSION PLANS or the termination of the GM PENSION PLANS, including without limitation any liability under section 302 of Title I of ERISA or under Title IV of ERISA (including without limitation, any lien, liability, or obligation under section - 6 - 170 4042, 4062, 4068 or 4069 of ERISA, 29 U.S.C. Section 1342, 1362, 1368 or 1369). 18. GM PENSION PLANS means every defined benefit pension plan covered by Title IV of ERISA for which GM or a GM SUBSIDIARY is a CONTRIBUTING SPONSOR as of or at any time prior to or at any time after the TRANSACTION DATE, provided, however, that GM PENSION PLANS shall not include any plans for which EDS or an EDS SUBSIDIARY is a CONTRIBUTING SPONSOR. 19. GM SHARE means an equity security issued by GM, including without limitation a share of GM Class E Stock. GM SHARES do not include shares or securities issued by persons other than GM that are received in exchange for, or upon conversion or redemption of, GM SHARES. 20. GM SUBSIDIARY means each and every person that is or was at any time on or after May 9, 1994, a member of GM's CONTROLLED GROUP, except for EDS, RGR HOLDINGS, INC., and the EDS SUBSIDIARIES listed on Appendix S to the AGREEMENT. 21. HOURLY PLAN means the General Motors Hourly-Rate Employees Pension Plan (Employer Identification number 38-0572515, plan number 003). 22. QUALIFIED EDS TRANSACTION means any transaction or series of transactions (including without limitation any transaction or series of transactions by which GM Class E Stock - 7 - 171 is exchanged, converted or redeemed for capital stock of EDS) by which EDS ceases to be a member of GM's CONTROLLED GROUP, unless, immediately after the TRANSACTION DATE (i) more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, and (ii) more than 5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. Notwithstanding the foregoing, even if immediately after the TRANSACTION DATE, more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM Shares and more than 5% of the Then-Current Fair Market Value of the Hourly Plan's assets consists of EMPLOYER SECURITIES, such transaction nonetheless will become a QUALIFIED EDS TRANSACTION if and upon any later date that falls not more than 120 days after the TRANSACTION DATE either (i) no more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, or (ii) no more than 5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. For purposes of this definition of QUALIFIED EDS TRANSACTION, in determining whether the 5% limit is exceeded, any security that would otherwise constitute an EMPLOYER SECURITY and that is contributed to the HOURLY PLAN after the last CONTRIBUTION DATE for the CONTRIBUTED SHARES shall be deemed to be a Non-employer Security if (i) the contribution of such security is within the - 8 - 172 ERISA LIMITS, and (ii) the credit balance in the FUNDING STANDARD ACCOUNT resulting from the contribution of such security is still unused on the TRANSACTION DATE. 23. TRANSACTION DATE with respect to the QUALIFIED EDS TRANSACTION (including a transaction that becomes a QUALIFIED EDS TRANSACTION) means [insert the date on which EDS ceases to be a member of GM's CONTROLLED GROUP, if known, or if not known, insert the following: "the date on which EDS ceases to be a member of GM's CONTROLLED GROUP"]. 24. This Release and Covenant Not to Sue shall not be affected by (i) any amendment, modification, termination, or waiver of the AGREEMENT, (ii) any determination with respect to the AGREEMENT, including without limitation any determination that said AGREEMENT is not valid or enforceable in whole or in part, or (iii) any breach by GM or PBGC of the AGREEMENT. 25. Except to the extent expressly provided in paragraphs 1 and 2 above, this Release and Covenant Not to Sue shall not affect the rights, if any, of any party with respect to, or under, or to enforce the provisions of, the AGREEMENT. 26. This Release and Covenant Not to Sue shall be governed by the laws of the District of Columbia and by ERISA, the CODE and other laws of the United States to the extent they preempt District of Columbia law. - 9 - 173 27. Nothing in this Release and Covenant Not to Sue shall be construed as an admission by or on behalf of any person identified herein that any liabilities or obligations are now owed to PBGC or a GM PENSION PLAN, or may be owed to PBGC or a GM PENSION PLAN in the future, by that person. Nothing in this Release and Covenant Not to Sue shall be construed as an admission by any person that PBGC has, or will have, rights to legal or equitable relief in connection with any transaction involving EDS, regardless of whether such transaction is a QUALIFIED EDS TRANSACTION. 28. Notwithstanding anything in this Release and Covenant Not to Sue, once released from the GM PENSION LIABILITY as a result of this Release and Covenant Not to Sue, any EDS RELEASEE that reenters GM's CONTROLLED GROUP and any EDS TRANSFEREE that enters or reenters GM's CONTROLLED GROUP may, by reentering or entering the GM CONTROLLED GROUP, become subject to the GM PENSION LIABILITY to the extent otherwise provided by law. 29. Nothing in this Release and Covenant Not to Sue shall be construed to restrict, enlarge or otherwise affect PBGC's rights, if any, against any person (including any EDS RELEASEE or any EDS TRANSFEREE) with respect to transactions or events occurring after the TRANSACTION DATE and not in connection with a QUALIFIED EDS TRANSACTION. - 10 - 174 30. Nothing in this Release and Covenant Not to Sue shall be construed to release any of the EDS RELEASEES, EDS SUBSIDIARIES or EDS TRANSFEREES from their obligations, if any, respecting the EDS PLANS. 31. This Release and Covenant Not to Sue, together with the Release and Covenant Not to Sue in the form of Appendix R2 to the AGREEMENT executed by the undersigned, supersede the Release and Covenant Not to Sue executed by the undersigned on [insert date], a copy of which is attached hereto as Appendix R1. 32. The undersigned represents and warrants that he has full power and authority to execute this Release and Covenant Not to Sue on behalf of PBGC, and to make the following representations on behalf of PBGC. PBGC is a wholly-owned United States government corporation established under Title IV of ERISA. PBGC has full power and authority to enter into and perform its obligations under this Release and Covenant Not to Sue. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue, have been duly authorized by all necessary corporate action and are within PBGC's statutory authorization and authority. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue: (i) will not violate in any material respect any law applicable to PBGC or any of its properties; and (ii) will not violate any - 11 - 175 provision of Title IV of ERISA or PBGC's By-Laws, other applicable statutes, regulations and rules governing PBGC, or any material contract or agreement which is binding on PBGC or its properties. PENSION BENEFIT GUARANTY CORPORATION By: --------------------------------- MARTIN SLATE Its Executive Director SUBSCRIBED AND SWORN TO BEFORE ME THIS ____ DAY OF ____________, 1995 - 12 - 176 [APPENDIX R4] RELEASE AND COVENANT NOT TO SUE 1. In consideration of the terms, conditions, mutual covenants and agreements set forth in the Agreement made as of March 3, 1995 (the "EFFECTIVE DATE"), by and between General Motors Corporation ("GM") and the Pension Benefit Guaranty Corporation ("PBGC") (the "AGREEMENT"), the adequacy and sufficiency of which are hereby acknowledged, the PBGC, a wholly-owned United States government corporation created by section 4002(b) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. Section 1302(b), on its own behalf and in every other capacity in which it may now or in the future act, releases and forever discharges each of the EDS RELEASEES from any claim whatsoever with respect to any and all of the GM PENSION LIABILITY and from all actions, causes of action, suits, debts, dues, sums of money, expenses, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, costs, judgments, executions, obligations, losses, liabilities, claims and demands whatsoever, whether in law or equity, whether direct or indirect, whether for indemnity or contribution, whether fixed or contingent, whether such be presently known or unknown, suspected or unsuspected, whether or not hidden or concealed, which PBGC and its successors and assigns ever had, now have, or may have in the future against any of the EDS RELEASEES with respect to such 177 GM PENSION LIABILITY, except that: [insert (i) or (ii) below, or both, as applicable]: [(i) the EDS RELEASEES are not released from a potential liability, if any, in an amount of not more than [insert amount, determined under section 9(f)(i)(D)(i) of the AGREEMENT], which potential liability, if any, shall attach, if at all, only if the HOURLY PLAN is terminated under Title IV of ERISA within five years after the TRANSACTION DATE and only if PBGC establishes that the EDS RELEASEES are otherwise liable therefor under Title IV of ERISA without regard to the AGREEMENT; and/or (ii) the EDS RELEASEES do not include [insert name(s) of corporation(s), if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT].] In this regard, the EDS RELEASEES [and] [insert name(s) of corporation(s), if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT] retain all claims, rights and defenses available under law. If, before the TRANSACTION DATE, section 4069(a) of ERISA is amended to specify a finite number of years other than five, such other number of years shall be substituted wherever "five" appears above, provided, however, that in all events such period shall run continuously from the TRANSACTION DATE. 178 2. PBGC covenants never to initiate or pursue against any person (including without limitation, the EDS RELEASEES, EDS TRANSFEREES, GM, all persons within GM's CONTROLLED GROUP, the GM PENSION PLANS, and the fiduciaries and administrators of the GM PENSION PLANS) any administrative, judicial or other proceeding, specifically including without limitation any proceeding under section 4042 or 4069 of ERISA, 29 U.S.C. Section 1342 or 1369, or to threaten or assert an intention to initiate any such proceeding, or to seek any other equitable or legal relief, by reason of (i) any QUALIFIED EDS TRANSACTION, (ii) any transaction in a series of transactions that constitutes, is reasonably related to, or is reasonably necessary to effect, a QUALIFIED EDS TRANSACTION, or (iii) any transfer from GM or a GM SUBSIDIARY of assets, operations or securities (including stock of any type) to or into EDS or an EDS SUBSIDIARY, that occurs prior to the TRANSACTION DATE or in conjunction with a QUALIFIED EDS TRANSACTION; provided, however, that PBGC's Covenant Not to Sue under this paragraph 2 shall not (A) extend to or restrict PBGC's exercise of its rights, if any, against GM with respect to a material misrepresentation by GM in a certification described in section 9(c)(2)(A), 9(c)(2)(E), 9(c)(3)(ii)(A), 9(c)(3)(ii)(B)(II), or 9(c)(3)(ii)(B)(III) of the Agreement where such material misrepresentation was reasonably relied upon by PBGC and resulted in material prejudice to PBGC, provided such claim is asserted in a lawsuit filed against GM within the nine-month period beginning on the later of the TRANSACTION DATE or - 3 - 179 the date a transaction becomes a QUALIFIED EDS TRANSACTION, or [insert (B), (C), (D) or (E) below, or a combination thereof, as determined under the Agreement, including in the case of paragraph (C) below, section 9(f)(iii) of the Agreement] [(B) extend to, or restrict PBGC's exercise of its rights under Title IV of ERISA, if any, including its rights, if any, under section 4069 of ERISA, 29 U.S.C. Section 1369, against any person other than the EDS RELEASEES in the event of a MATERIAL TRANSFER consisting of stock of any single GM Subsidiary that has a fair value greater than $3 billion (other than a GM SUBSIDIARY that was transferred in a MATERIAL TRANSFER described in section 9(e)(1)(D) of the AGREEMENT) and that is not or will no longer be a member of GM's CONTROLLED GROUP on the TRANSACTION DATE and is or will be a member of EDS's CONTROLLED GROUP on the TRANSACTION DATE,] [or] [(C) extend to, or restrict PBGC's rights under Title IV of ERISA, if any, to the extent such rights are not released pursuant to paragraph 1 above with respect to a MATERIAL TRANSFER consisting of stock of any single GM SUBSIDIARY that has a fair value greater than $3 billion where such GM SUBSIDIARY is not or will no longer be a member of GM's CONTROLLED GROUP immediately after the TRANSACTION DATE and - 4 - 180 is not or will no longer be a member of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE,] [or] [(D) extend to, or restrict PBGC's exercise of its rights under Title IV of ERISA, if any, including its rights, if any, under section 4069(a) of ERISA, 29 U.S.C. Section 1369(a), after the TRANSACTION DATE, against the EDS RELEASEES for [insert amount, if any, determined under section 9(f)(i)(D)(i) of the AGREEMENT] to the extent specified in section 9(f)(i)(D) of the Agreement if GM elects Releases and Covenants Not To Sue under section 9(f)(i)(D)(i) of the Agreement,] [or] [(E) extend to, or restrict PBGC's exercise of its rights under Title IV of ERISA, if any, including its rights, if any, under section 4069(a) of ERISA, 29 U.S.C. Section 1369(a), after the TRANSACTION DATE, to the extent specified in section 9(f)(i)(D) of the Agreement as against [insert name(s) of corporation(s), if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT].] [Insert the following paragraph 2.5, if applicable under the Agreement] [2.5. If, during the three-consecutive-year period ending on the TRANSACTION DATE, there are MATERIAL TRANSFERS consisting of stock of NEWSUBS that have an aggregate fair value - 5 - 181 greater than $6 billion and that are no longer member(s) of GM's CONTROLLED GROUP on the TRANSACTION DATE and are members of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE, then all such MATERIAL TRANSFERS shall be aggregated and treated the same as a MATERIAL TRANSFER consisting of stock of a single GM SUBSIDIARY that has a fair value greater than $3 billion and that is not or will no longer be a member of GM's CONTROLLED GROUP on the TRANSACTION DATE and is or will be a member of EDS's CONTROLLED GROUP on the TRANSACTION DATE for purposes of paragraph 2(B) above. Any MATERIAL TRANSFERS consisting of stock of NEWSUBS that are not made during the three-consecutive-year period noted above shall not be aggregated and treated as provided for in the preceding sentence, nor shall such MATERIAL TRANSFERS be taken into account in applying the $6 billion threshold set forth in the preceding sentence, but such MATERIAL TRANSFERS shall be treated as MATERIAL TRANSFERS to the extent otherwise provided under the AGREEMENT. If the period beginning May 9, 1994, and ending on the TRANSACTION DATE is shorter than three years, then such shorter period shall be substituted for the three-consecutive-year period described above.] 3. CONTRIBUTED SHARES means those shares of GM Class E Stock contributed pursuant to section 2 of the AGREEMENT. CONTRIBUTED SHARES do not include EXCHANGED SHARES. 4. CONTRIBUTING SPONSOR has the meaning set forth in section 4001(a)(13) of ERISA. - 6 - 182 5. CONTRIBUTION DATE with respect to a security or asset means the date as of which that security or asset is deemed contributed to the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the Internal Revenue Code of 1986, as amended ("CODE"). 6. CONTROLLED GROUP has the meaning set forth in section 4001(a)(14) of ERISA. 7. EDS means Electronic Data Systems Corporation, a Texas corporation that currently is a wholly-owned subsidiary of RGR Holdings, Inc. ("RGR HOLDINGS, INC."), a Delaware corporation that in turn is a wholly-owned subsidiary of GM. 8. EDS FUTURE AFFILIATES means any person that becomes a member of a CONTROLLED GROUP with EDS after the TRANSACTION DATE, other than a person that is or was at any time a member of GM's CONTROLLED GROUP. 9. EDS PLANS means the Electronic Data Systems Corporation Retirement Plan, and every other defined benefit pension plan (if any) covered by Title IV of ERISA for which EDS, an EDS SUBSIDIARY or an EDS RELEASEE is a CONTRIBUTING SPONSOR. 10. EDS RELEASEES means EDS plus RGR HOLDINGS, INC., plus the EDS SUBSIDIARIES plus the EDS FUTURE AFFILIATES, plus any person identified in part (i) or (ii) of the definition of EDS SUBSIDIARIES that is not in EDS's CONTROLLED GROUP as of the - 7 - 183 TRANSACTION DATE but is transferred in whole or in part to a third party in conjunction with a QUALIFIED EDS TRANSACTION or in a transaction reasonably related to or reasonably necessary to effect a QUALIFIED EDS TRANSACTION, plus each and all of the agents, advisors, legal counsel, partners, joint venturers, officers, directors and assigns of any of the foregoing persons or any of them. Notwithstanding the foregoing, the term "EDS RELEASEES" shall not include [insert name(s) of corporation(s), if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT,] GM or any other person that was a member of GM's CONTROLLED GROUP before the TRANSACTION DATE and continues without interruption to be a member of GM's CONTROLLED GROUP immediately following the TRANSACTION DATE. 11. EDS SUBSIDIARIES means (i) the persons listed on Appendix S to the AGREEMENT all of which are owned, directly or indirectly, by EDS as of the EFFECTIVE DATE plus (ii) the additional persons, if any, in which EDS acquires a "controlling interest" within the meaning of Treas. Reg. Section 1.414(c)-(2)(b)(2) after the EFFECTIVE DATE and on or before the TRANSACTION DATE provided that those persons are members of EDS's CONTROLLED GROUP as of the TRANSACTION DATE. 12. EDS TRANSFEREE means any purchaser or other direct or indirect transferee of any or all of the stock or assets of any of the EDS RELEASEES, by way of purchase, sale, assignment, pledge, exchange, conversion, merger, consolidation, amalgamation - 8 - 184 or otherwise, and each of their parent organizations, subsidiary organizations, successors and assigns (whether present or future), or any of them (whether or not incorporated), and each and all of their agents, advisors, legal counsel, fiduciaries, partners, joint venturers, officers, directors and assigns, or any of them, but specifically excluding (i) any person who is, after the TRANSACTION DATE, a member of GM's CONTROLLED GROUP, and (ii) any GM SUBSIDIARY that is not a member of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE and (iii) [insert name(s) of corporation(s), if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT]. 13. EMPLOYER SECURITY has the meaning set forth in section 407(d)(1) of ERISA. 14. ERISA LIMITS means, with respect to EMPLOYER SECURITIES held by the HOURLY PLAN at the time application of the term "ERISA LIMITS" is at issue, that: (i) the aggregate fair market value of all EMPLOYER SECURITIES held by the HOURLY PLAN does not exceed 10 percent of the fair market value of the assets of the HOURLY PLAN at such time; (ii) no more than 25 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by the HOURLY PLAN at such time; and (iii) at least 50 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by persons independent of the issuer at such time. - 9 - 185 15. EXCHANGED SHARES means shares, if any, received by the HOURLY PLAN in exchange for, or upon conversion or redemption of, the CONTRIBUTED SHARES. 16. FUNDING STANDARD ACCOUNT means the funding standard account maintained for the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the CODE. 17. GM PENSION LIABILITY means any and all liabilities or obligations now existing, or hereafter arising, to PBGC (on its own behalf, as trustee for any plan, or in any other capacity) or to the GM PENSION PLANS under Title IV of ERISA with respect to the GM PENSION PLANS or the termination of the GM PENSION PLANS, including without limitation any liability under section 302 of Title I of ERISA or under Title IV of ERISA (including without limitation, any lien, liability, or obligation under section 4042, 4062, 4068 or 4069 of ERISA, 29 U.S.C. Section 1342, 1362, 1368 or 1369). 18. GM PENSION PLANS means every defined benefit pension plan covered by Title IV of ERISA for which GM or a GM SUBSIDIARY is a CONTRIBUTING SPONSOR as of or at any time prior to or at any time after the TRANSACTION DATE, provided, however, that GM PENSION PLANS shall not include any plans for which EDS or an EDS SUBSIDIARY is a CONTRIBUTING SPONSOR. 19. GM SHARE means an equity security issued by GM, including without limitation a share of GM Class E Stock. - 10 - 186 GM SHARES do not include shares or securities issued by persons other than GM that are received in exchange for, or upon conversion or redemption of, GM SHARES. 20. GM SUBSIDIARY means each and every person that is or was at any time on or after May 9, 1994, a member of GM's CONTROLLED GROUP, except for EDS, RGR HOLDINGS, INC., and the EDS SUBSIDIARIES listed on Appendix S to the AGREEMENT. 21. HOURLY PLAN means the General Motors Hourly-Rate Employees Pension Plan (Employer Identification number 38-0572515, plan number 003). 22. MATERIAL TRANSFER has the meaning set forth in the AGREEMENT. [Insert the following paragraph 22.5 if paragraph 2.5 is included] [22.5. NEWSUB has the meaning set forth in the AGREEMENT.] 23. QUALIFIED EDS TRANSACTION means any transaction or series of transactions (including without limitation any transaction or series of transactions by which GM Class E Stock is exchanged, converted or redeemed for capital stock of EDS) by which EDS ceases to be a member of GM's CONTROLLED GROUP, unless, immediately after the TRANSACTION DATE (i) more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, and (ii) more than 5% of the Then-Current Fair Market - 11 - 187 Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. Notwithstanding the foregoing, even if immediately after the TRANSACTION DATE, more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM Shares and more than 5% of the Then-Current Fair Market Value of the Hourly Plan's assets consists of EMPLOYER SECURITIES, such transaction nonetheless will become a QUALIFIED EDS TRANSACTION if and upon any later date that falls not more than 120 days after the TRANSACTION DATE either (i) no more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, or (ii) no more than 5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. For purposes of this definition of QUALIFIED EDS TRANSACTION, in determining whether the 5% limit is exceeded, any security that would otherwise constitute an EMPLOYER SECURITY and that is contributed to the HOURLY PLAN after the last CONTRIBUTION DATE for the CONTRIBUTED SHARES shall be deemed to be a Non-employer Security if (i) the contribution of such security is within the ERISA LIMITS, and (ii) the credit balance in the FUNDING STANDARD ACCOUNT resulting from the contribution of such security is still unused on the TRANSACTION DATE. 24. TRANSACTION DATE with respect to the QUALIFIED EDS TRANSACTION (including a transaction that becomes a QUALIFIED EDS - 12 - 188 TRANSACTION) means [insert the date on which EDS ceases to be a member of GM's CONTROLLED GROUP, if known, or if not known, insert the following: "the date on which EDS ceases to be a member of GM's CONTROLLED GROUP"]. 25. This Release and Covenant Not to Sue shall not be affected by (i) any amendment, modification, termination, or waiver of the AGREEMENT, (ii) any determination with respect to the AGREEMENT, including without limitation any determination that said AGREEMENT is not valid or enforceable in whole or in part, or (iii) any breach by GM or PBGC of the AGREEMENT. 26. Except to the extent expressly provided in paragraphs 1 and 2 [and 2.5, if applicable,] above, this Release and Covenant Not to Sue shall not affect the rights, if any, of any party with respect to, or under, or to enforce the provisions of, the AGREEMENT. 27. This Release and Covenant Not to Sue shall be governed by the laws of the District of Columbia and by ERISA, the CODE and other laws of the United States to the extent they preempt District of Columbia law. 28. Nothing in this Release and Covenant Not to Sue shall be construed as an admission by or on behalf of any person identified herein that any liabilities or obligations are now owed to PBGC or a GM PENSION PLAN, or may be owed to PBGC or a GM PENSION PLAN in the future, by that person. Nothing in this - 13 - 189 Release and Covenant Not to Sue shall be construed as an admission by any person that PBGC has, or will have, rights to legal or equitable relief in connection with any transaction involving EDS, regardless of whether such transaction is a QUALIFIED EDS TRANSACTION. 29. Notwithstanding anything in this Release and Covenant Not to Sue, once released from the GM PENSION LIABILITY as a result of this Release and Covenant Not to Sue, any EDS RELEASEE that reenters GM's CONTROLLED GROUP and any EDS TRANSFEREE that enters or reenters GM's CONTROLLED GROUP may, by reentering or entering the GM CONTROLLED GROUP, become subject to the GM PENSION LIABILITY to the extent otherwise provided by law. 30. Nothing in this Release and Covenant Not to Sue shall be construed to restrict, enlarge or otherwise affect PBGC's rights, if any, against any person (including any EDS RELEASEE or any EDS TRANSFEREE) with respect to transactions or events occurring after the TRANSACTION DATE and not in connection with a QUALIFIED EDS TRANSACTION. 31. Nothing in this Release and Covenant Not to Sue shall be construed to release any of the EDS RELEASEES, EDS SUBSIDIARIES or EDS TRANSFEREES from their obligations and liabilities, if any, respecting the EDS PLANS. 32. This Release and Covenant Not to Sue [if applicable, insert the following: "together with the Release and Covenant Not - 14 - 190 to Sue in the form of Appendix R5 to the AGREEMENT executed by the undersigned,"] supersede[s] the Release and Covenant Not to Sue executed by the undersigned on [insert date], a copy of which is attached hereto as Appendix R1. 33. The undersigned represents and warrants that he has full power and authority to execute this Release and Covenant Not to Sue on behalf of PBGC, and to make the following representations on behalf of PBGC. PBGC is a wholly-owned United States government corporation established under Title IV of ERISA. PBGC has full power and authority to enter into and perform its obligations under this Release and Covenant Not to Sue. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue, have been duly authorized by all necessary corporate action and are within PBGC's statutory authorization and authority. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue: (i) will not violate in any material respect any law applicable to PBGC or any of its properties; and (ii) will not violate any provision of Title IV of ERISA or PBGC's By-Laws, other applicable statutes, regulations and rules governing PBGC, or any material contract or agreement which is binding on PBGC or its properties. - 15 - 191 PENSION BENEFIT GUARANTY CORPORATION By: --------------------------------- MARTIN SLATE Its Executive Director SUBSCRIBED AND SWORN TO BEFORE ME THIS ____ DAY OF ____________, 1995 - 16 - 192 [APPENDIX R5] RELEASE AND COVENANT NOT TO SUE 1. In consideration of the terms, conditions, mutual covenants and agreements set forth in the Agreement made as of March 3, 1995 (the "EFFECTIVE DATE"), by and between General Motors Corporation ("GM") and the Pension Benefit Guaranty Corporation ("PBGC") (the "AGREEMENT"), the adequacy and sufficiency of which are hereby acknowledged, the PBGC, a wholly-owned United States government corporation created by section 4002(b) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. Section 1302(b), on its own behalf and in every other capacity in which it may now or in the future act, releases and forever discharges each of the EDS TRANSFEREES, including without limitation [INSERT NAMES OF SPECIFIC EDS TRANSFEREES, IF ANY, IDENTIFIED BY GM AT THE TIME OF EXECUTION AND DELIVERY], from any claim whatsoever with respect to any and all of the GM PENSION LIABILITY and from all actions, causes of action, suits, debts, dues, sums of money, expenses, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, costs, judgments, executions, obligations, losses, liabilities, claims and demands whatsoever, whether in law or equity, whether direct or indirect, whether for indemnity or contribution, whether fixed or contingent, whether such be presently known or unknown, suspected or unsuspected, whether or not hidden or concealed, which PBGC and its successors and assigns ever had, now have, or 193 may have in the future against any of the EDS TRANSFEREES with respect to such GM PENSION LIABILITY. 2. PBGC covenants never to initiate or pursue against any person (including without limitation, the EDS RELEASEES, EDS TRANSFEREES, GM, all persons within GM's CONTROLLED GROUP, the GM PENSION PLANS, and the fiduciaries and administrators of the GM PENSION PLANS) any administrative, judicial or other proceeding, specifically including without limitation any proceeding under section 4042 or 4069 of ERISA, 29 U.S.C. Section 1342 or 1369, or to threaten or assert an intention to initiate any such proceeding, or to seek any other equitable or legal relief, by reason of (i) any QUALIFIED EDS TRANSACTION, (ii) any transaction in a series of transactions that constitutes, is reasonably related to, or is reasonably necessary to effect, a QUALIFIED EDS TRANSACTION, or (iii) any transfer from GM or a GM SUBSIDIARY of assets, operations or securities (including stock of any type) to or into EDS or an EDS SUBSIDIARY, that occurs prior to the TRANSACTION DATE or in conjunction with a QUALIFIED EDS TRANSACTION; provided, however, that PBGC's Covenant Not To Sue under this paragraph 2 shall not (A) extend to or restrict PBGC's exercise of its rights, if any, against GM with respect to a material misrepresentation by GM in a certification described in section 9(c)(2)(A), 9(c)(2)(E), 9(c)(3)(ii)(A), 9(c)(3)(ii)(B)(II) or 9(c)(3)(ii)(B)(III) of the Agreement where such material misrepresentation was reasonably relied upon by - 2 - 194 PBGC and resulted in material prejudice to PBGC, provided such claim is asserted in a lawsuit filed against GM within the nine-month period beginning on the later of the TRANSACTION DATE or the date on which a transaction becomes a QUALIFIED EDS TRANSACTION, or [insert (B), (C), or (D) below, or a combination thereof, as determined under the AGREEMENT, including in the case of paragraph (B) below, section 9(f)(iii) of the Agreement] [(B) extend to, or restrict PBGC's rights under Title IV of ERISA, if any, to the extent such rights are not released pursuant to paragraph 1 above with respect to a MATERIAL TRANSFER consisting of stock of any single GM SUBSIDIARY that has a fair value greater than $3 billion where such GM SUBSIDIARY is not or will no longer be a member of GM's CONTROLLED GROUP immediately after the TRANSACTION DATE and is not or will no longer be a member of EDS's CONTROLLED GROUP immediately after the TRANSACTION DATE,] [or] [(C) extend to, or restrict PBGC's exercise of its rights under Title IV of ERISA, if any, including its rights, if any, under section 4069(a) of ERISA, 29 U.S.C. Section 1369(a), after the TRANSACTION DATE, against the EDS RELEASEES for [insert amount, if any, determined under section 9(f)(i)(D)(i) of the AGREEMENT] to the extent specified in section 9(f)(i)(D) of the Agreement if GM elects Releases - 3 - 195 and Covenants Not To Sue under section 9(f)(i)(D)(i) of the Agreement,] [or] [(D) extend to, or restrict PBGC's exercise of its rights under Title IV of ERISA, if any, including its rights, if any, under section 4069(a) of ERISA, 29 U.S.C. Section 1369(a), after the TRANSACTION DATE, to the extent specified in section 9(f)(i)(D) of the Agreement as against [insert name(s) of corporation(s), if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT].] 3. CONTRIBUTED SHARES means those shares of GM Class E Stock contributed pursuant to section 2 of the AGREEMENT. CONTRIBUTED SHARES do not include EXCHANGED SHARES. 4. CONTRIBUTING SPONSOR has the meaning set forth in section 4001(a)(13) of ERISA. 5. CONTRIBUTION DATE with respect to a security or asset means the date as of which that security or asset is deemed contributed to the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the Internal Revenue Code of 1986, as amended ("CODE"). 6. CONTROLLED GROUP has the meaning set forth in section 4001(a)(14) of ERISA. - 4 - 196 7. EDS means Electronic Data Systems Corporation, a Texas corporation that currently is a wholly-owned subsidiary of RGR Holdings, Inc. ("RGR HOLDINGS, INC."), a Delaware corporation that in turn is a wholly-owned subsidiary of GM. 8. EDS FUTURE AFFILIATES means any person that becomes a member of a CONTROLLED GROUP with EDS after the TRANSACTION DATE, other than a person that is or was at any time a member of GM's CONTROLLED GROUP. 9. EDS PLANS means the Electronic Data Systems Corporation Retirement Plan, and every other defined benefit pension plan (if any) covered by Title IV of ERISA for which EDS, an EDS SUBSIDIARY or an EDS RELEASEE is a CONTRIBUTING SPONSOR. 10. EDS RELEASEES means EDS plus RGR HOLDINGS, INC., plus the EDS SUBSIDIARIES plus the EDS FUTURE AFFILIATES, plus any person identified in part (i) or (ii) of the definition of EDS SUBSIDIARIES that is not in EDS's CONTROLLED GROUP as of the TRANSACTION DATE but is transferred in whole or in part to a third party in conjunction with a QUALIFIED EDS TRANSACTION or in a transaction reasonably related to or reasonably necessary to effect a QUALIFIED EDS TRANSACTION, plus each and all of the agents, advisors, legal counsel, partners, joint venturers, officers, directors and assigns of any of the foregoing persons or any of them. Notwithstanding the foregoing, the term "EDS RELEASEES" shall not include [insert name(s) of corporation(s), - 5 - 197 if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT,] GM or any other person that was a member of GM's CONTROLLED GROUP before the TRANSACTION DATE and continues without interruption to be a member of GM's CONTROLLED GROUP immediately following the TRANSACTION DATE. 11. EDS SUBSIDIARIES means (i) the persons listed on Appendix S to the AGREEMENT, all of which are owned, directly or indirectly, by EDS as of the EFFECTIVE DATE plus (ii) the additional persons, if any, in which EDS acquires a "controlling interest" within the meaning of Treas. Reg. Section 1.414(c)-(2)(b)(2) after the EFFECTIVE DATE and on or before the TRANSACTION DATE provided that those persons are members of EDS's CONTROLLED GROUP as of the TRANSACTION DATE. 12. EDS TRANSFEREE means any purchaser or other direct or indirect transferee of any or all of the stock or assets of any of the EDS RELEASEES, by way of purchase, sale, assignment, pledge, exchange, conversion, merger, consolidation, amalgamation or otherwise, and each of their parent organizations, subsidiary organizations, successors and assigns (whether present or future), or any of them (whether or not incorporated), and each and all of their agents, advisors, legal counsel, fiduciaries, partners, joint venturers, officers, directors and assigns, or any of them, but specifically excluding (i) any person who is, after the TRANSACTION DATE, a member of GM's CONTROLLED GROUP, and (ii) any GM SUBSIDIARY that is not a member of EDS's - 6 - 198 CONTROLLED GROUP immediately after the TRANSACTION DATE and (iii) [insert name(s) of corporation(s), if any, determined under section 9(f)(i)(D)(ii) of the AGREEMENT]. 13. EMPLOYER SECURITY has the meaning set forth in section 407(d)(1) of ERISA. 14. ERISA LIMITS means, with respect to EMPLOYER SECURITIES held by the HOURLY PLAN at the time application of the term "ERISA LIMITS" is at issue, that: (i) the aggregate fair market value of all EMPLOYER SECURITIES held by the HOURLY PLAN does not exceed 10 percent of the fair market value of the assets of the HOURLY PLAN at such time; (ii) no more than 25 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by the HOURLY PLAN at such time; and (iii) at least 50 percent of the aggregate amount of stock of the same class of EMPLOYER SECURITIES issued and outstanding is held by persons independent of the issuer at such time. 15. EXCHANGED SHARES means shares, if any, received by the HOURLY PLAN in exchange for, or upon conversion or redemption of, the CONTRIBUTED SHARES. 16. FUNDING STANDARD ACCOUNT means the funding standard account maintained for the HOURLY PLAN pursuant to section 302 of ERISA and section 412 of the CODE. - 7 - 199 17. GM PENSION LIABILITY means any and all liabilities or obligations now existing, or hereafter arising, to PBGC (on its own behalf, as trustee for any plan, or in any other capacity) or to the GM PENSION PLANS under Title IV of ERISA with respect to the GM PENSION PLANS or the termination of the GM PENSION PLANS, including without limitation any liability under section 302 of Title I of ERISA or under Title IV of ERISA (including without limitation, any lien, liability, or obligation under section 4042, 4062, 4068 or 4069 of ERISA, 29 U.S.C. Section 1342, 1362, 1368 or 1369). 18. GM PENSION PLANS means every defined benefit pension plan covered by Title IV of ERISA for which GM or a GM SUBSIDIARY is a CONTRIBUTING SPONSOR as of or at any time prior to or at any time after the TRANSACTION DATE, provided, however, that GM PENSION PLANS shall not include any plans for which EDS or an EDS SUBSIDIARY is a CONTRIBUTING SPONSOR. 19. GM SHARE means an equity security issued by GM, including without limitation a share of GM Class E Stock. GM SHARES do not include shares or securities issued by persons other than GM that are received in exchange for, or upon conversion or redemption of, GM SHARES. 20. GM SUBSIDIARY means each and every person that is or was at any time on or after May 9, 1994, a member of GM's - 8 - 200 CONTROLLED GROUP, except for EDS, RGR HOLDINGS, INC., and the EDS SUBSIDIARIES listed on Appendix S to the AGREEMENT. 21. HOURLY PLAN means the General Motors Hourly-Rate Employees Pension Plan (Employer Identification number 38-0572515, plan number 003). 22. MATERIAL TRANSFER has the meaning set forth in the AGREEMENT. 23. QUALIFIED EDS TRANSACTION means any transaction or series of transactions (including without limitation any transaction or series of transactions by which GM Class E Stock is exchanged, converted or redeemed for capital stock of EDS) by which EDS ceases to be a member of GM's CONTROLLED GROUP, unless, immediately after the TRANSACTION DATE (i) more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, and (ii) more than 5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. Notwithstanding the foregoing, even if immediately after the TRANSACTION DATE, more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM Shares and more than 5% of the Then- Current Fair Market Value of the Hourly Plan's assets consists of EMPLOYER SECURITIES, such transaction nonetheless will become a QUALIFIED EDS TRANSACTION if and upon - 9 - 201 any later date that falls not more than 120 days after the TRANSACTION DATE either (i) no more than 2.5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of CONTRIBUTED SHARES or EXCHANGED SHARES that are GM SHARES, or (ii) no more than 5% of the Then-Current Fair Market Value of the HOURLY PLAN's assets consists of EMPLOYER SECURITIES. For purposes of this definition of QUALIFIED EDS TRANSACTION, in determining whether the 5% limit is exceeded, any security that would otherwise constitute an EMPLOYER SECURITY and that is contributed to the HOURLY PLAN after the last CONTRIBUTION DATE for the CONTRIBUTED SHARES shall be deemed to be a Non-employer Security if (i) the contribution of such security is within the ERISA LIMITS, and (ii) the credit balance in the FUNDING STANDARD ACCOUNT resulting from the contribution of such security is still unused on the TRANSACTION DATE. 24. TRANSACTION DATE with respect to the QUALIFIED EDS TRANSACTION (including a transaction that becomes a QUALIFIED EDS TRANSACTION) means [insert the date on which EDS ceases to be a member of GM's CONTROLLED GROUP, if known, or if not known, insert the following: "the date on which EDS ceases to be a member of GM's CONTROLLED GROUP"]. 25. This Release and Covenant Not to Sue shall not be affected by (i) any amendment, modification, termination, or waiver of the AGREEMENT, (ii) any determination with respect to the AGREEMENT, including without limitation any determination - 10 - 202 that said AGREEMENT is not valid or enforceable in whole or in part, or (iii) any breach by GM or PBGC of the AGREEMENT. 26. Except to the extent expressly provided in paragraphs 1 and 2 above, this Release and Covenant Not to Sue shall not affect the rights, if any, of any party with respect to, or under, or to enforce the provisions of, the AGREEMENT. 27. This Release and Covenant Not to Sue shall be governed by the laws of the District of Columbia and by ERISA, the CODE and other laws of the United States to the extent they preempt District of Columbia law. 28. Nothing in this Release and Covenant Not to Sue shall be construed as an admission by or on behalf of any person identified herein that any liabilities or obligations are now owed to PBGC or a GM PENSION PLAN, or may be owed to PBGC or a GM PENSION PLAN in the future, by that person. Nothing in this Release and Covenant Not to Sue shall be construed as an admission by any person that PBGC has, or will have, rights to legal or equitable relief in connection with any transaction involving EDS, regardless of whether such transaction is a QUALIFIED EDS TRANSACTION. 29. Notwithstanding anything in this Release and Covenant Not to Sue, once released from the GM PENSION LIABILITY as a result of this Release and Covenant Not to Sue, any EDS RELEASEE that reenters GM's CONTROLLED GROUP and any EDS TRANSFEREE that - 11 - 203 enters or reenters GM's CONTROLLED GROUP may, by reentering or entering the GM CONTROLLED GROUP, become subject to the GM PENSION LIABILITY to the extent otherwise provided by law. 30. Nothing in this Release and Covenant Not to Sue shall be construed to restrict, enlarge or otherwise affect PBGC's rights, if any, against any person (including any EDS RELEASEE or any EDS TRANSFEREE) with respect to transactions or events occurring after the TRANSACTION DATE and not in connection with a QUALIFIED EDS TRANSACTION. 31. Nothing in this Release and Covenant Not to Sue shall be construed to release any of the EDS RELEASEES, EDS SUBSIDIARIES or EDS TRANSFEREES from their obligations and liabilities, if any, respecting the EDS PLANS. 32. This Release and Covenant Not to Sue, together with the Release and Covenant Not to Sue in the form of Appendix R4 to the AGREEMENT executed by the undersigned, supersede the Release and Covenant Not to Sue executed by the undersigned on [insert date], a copy of which is attached hereto as Appendix R1. 33. The undersigned represents and warrants that he has full power and authority to execute this Release and Covenant Not to Sue on behalf of PBGC, and to make the following representations on behalf of PBGC. PBGC is a wholly-owned United States government corporation established under Title IV of ERISA. PBGC has full power and authority to enter into and - 12 - 204 perform its obligations under this Release and Covenant Not to Sue. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue, have been duly authorized by all necessary corporate action and are within PBGC's statutory authorization and authority. PBGC's execution and delivery of this Release and Covenant Not to Sue, and PBGC's performance of its obligations under this Release and Covenant Not to Sue: (i) will not violate in any material respect any law applicable to PBGC or any of its properties; and (ii) will not violate any provision of Title IV of ERISA or PBGC's By-Laws, other applicable statutes, regulations and rules governing PBGC, or any material contract or agreement which is binding on PBGC or its properties. PENSION BENEFIT GUARANTY CORPORATION By: --------------------------------- MARTIN SLATE Its Executive Director SUBSCRIBED AND SWORN TO BEFORE ME THIS ____ DAY OF ____________, 1995 - 13 - 205 APPENDIX S Agora s.r.1. Alpha Joshua, Inc. Alpha Mariah, Inc. American Network Leasing Corporation Appex, Inc. Beijing International Information Processing Company Limited Beta Mariah, Inc. Beta Willow, Inc. Bristol Center Owners Association China Management Systems Corporation Conseil et Realisation en Informatique S.A. (CORI S.A.) Databank Systems Limited Database Progetti S.p.A. DATABASE S.p.A. Database Software S.p.A. Database Tecnologie S.p.A. Deep Star, Inc. Desarrollo y Servicios de Informatica y Communiciones, S.A. de C.V. DVOIT Limited E.D.S. (Electronic Data Systems) Limited E.D.S. Canada Leasing Ltd. E.D.S. de Mexico, Sociedad Anonima de Capital Variable E.D.S. Finance Limited E.D.S. International Corporation E.D.S. International Limited E.D.S. of Canada, Ltd. E.D.S. Spectrum Corporation E.D.S. World Corporation (Far East) E.D.S. World Corporation (Netherlands) Edley S.A. EDS (Australia) Pty Limited EDS (Australia) Superannuation Fund Pty Ltd EDS (Europe) S.A. EDS (New Zealand) Holdings Limited EDS (New Zealand) Limited Staff Superannuation Fund EDS (Schweiz) AG EDS 1994 Trustee Limited EDS Acquisition Corporation #4 EDS Alpha S.A. EDS Antares, Inc. EDS Automated Teller, Inc. EDS Beta S.A. EDS Beteiligungs GmbH EDS Beteiligungsverwaltungsgesellschaft Duisburg mbH EDS Consulting GmbH EDS Crisis Response Foundation EDS Defence Limited EDS Electronic Data System Luxemburg S.A. EDS Electronic Data Systems (City) Limited 206 EDS Electronic Data Systems (Deutschland) GmbH EDS Electronic Data Systems (Hong Kong) Limited EDS Electronic Financial Services, Inc. EDS Elektronikus Adatrendszer Kft EDS Eurosept S.A.S. EDS Export Corporation EDS Fleet Services, Inc. EDS Forsvars Services AB EDS Gamma S.A. EDS Global Services, Inc. EDS Gulf States, WLL EDS Hellas EDS Holding GmbH EDS Industrie S.A. EDS Information Management AG EDS Informatique (Suisse) S.A. EDS International (France) S.A. EDS International (Singapore) Pte. Limited EDS Kaufma nnische Dienste und Informatik GmbH EDS National Mid-Range Systems Pty Ltd EDS New Zealand Limited EDS Operations (M) Sdn. Bhd. EDS Personal Communications Corporation EDS Poland Sp. z.o.o. EDS Praha spol.s.r.o. EDS Technical Products Corporation EDS Technical Services AB EDS Trustee Limited EDS Unigraphics Systems GmbH EDS Vermo gensverwaltungs GmbH EDS VLT Holdings, Inc. EDS-Electronic Data Systems de Portugal EDS-Electronic Data Systems do Brasil Ltda EDS-Electronic Data Systems Italia S.p.A. EDS-Padcom Clinical Research Beteiligungs GmbH EDS-Scicon N.V. EDS-Scicon, US Software Products Group Incorporated EDSCICON (Malaysia) Sdn. Bhd. Electronic Data Systems (EDS) A/S Electronic Data Systems (EDS) de Argentina S.A. Electronic Data Systems (EDS) Gesellschaft mbH Electronic Data Systems (EDS) International B.V. Electronic Data Systems (EDS) Nederland B.V. Electronic Data Systems (EDS) Sweden AB Electronic Data Systems (Ireland) Limited Electronic Data Systems Belgium N.V. Electronic Data Systems Chile, S.A. Electronic Data Systems Colombia, S.A. Electronic Data Systems Danmark A/S Electronic Data Systems de Venezuela "EDS" C.A. APPENDIX S -- Page 2 207 Electronic Data Systems Espana S.A. Electronic Data Systems IT Services (M) Sdn. Bhd. Electronic Data Systems Limited Electronic Data Systems, Ltd. Electronic Data Systems Services, Ltd. Eurexcel Associes S.A. Europe Assurance Informatique S.A. (E.A.I. S.A.) Eurosept Benelux S.A. Eurosept Italy Associati S.r.l. Eurostrategy Consultants Limited Federal Computer Services Corporation France Informatique Juridique S.A. GCS Information Access Limited GCS Limited GFI Informatique Belgium S.A. ICR Internationale Consulting und Rechenzentrum GmbH Industrie Daten IDee GmbH Informatica Centrum Infrastructuur en Milieu B.V. Information Interchange Limited Informatique Proget S.A. J.C.I.S. Company, Limited Japan Systems Company Limited KIEL Lakewood Corp. Legacy Association Lenguajes y Servicios Informaticos, S.A. (LEINSA) M&DR Consultans Marketing and Data Research S.r.l. M&SD Network Services, Inc. Management Computer Equipment S.A. mbp Industrie Software Gmbh mbp Industrie Software Gmbh mbp Informationstechnologie GmbH mbp Software and Systems Technology Inc. mbp Softwareentwicklungs Gmbh National Heritage Insurance Company Neodata Corporation Nippon EDS Company, Ltd. Nishinihon Attene Computer Company, Ltd. Nova Domus S.r.l. OAN Services of Florida, Inc. OAN Services, Inc. Oy EDS Electronic Data Systems Ab Padcom Clinical Research Beteiligungs GmbH Power Investment Corporation Premida-Come rcio, Gestao e Servic os, LDA PREMISYS CORPORATION Progical S.A. S.D. (UK) Limited S.D. International Limited SA MEGAPLUS APPENDIX S -- Page 3 208 SA Proget Noord Sapporo Attene Computer Company, Ltd. Scicon Arabia Limited Scicon Energy, Inc. Scicon International Consultancy Limited Scicon International Systems Company Incorporated Scicon Limited Scicon Pension Trust Limited SD Secure Office Systems Limited SD-Scicon Europe Limited SD-Scicon Ltd SD-Scicon Pte Limited SV-EDS Technology Services, Ltd. Servicios Mexicanos E.D.S., S.A. de C.V. Sigeba S.A. Sipe Optimation S.p.A. SOAGE Milano S.r.l. Sociedad Anonima de Teleinforma tica para Cajas de Ahorros (SATEICA) Societe Flerienne De Participations Subarban Limited-Liability Company Sysdes Limited Systems & Management S.p.A. Systems Designers Aviation Limited Systems Designers Estates Limited Systems Designers International Limited Systems Designers Limited Systems Programming (Scotland) Limited Systems Programming Limited Systems Programming Overseas Limited Systems Technology Management Corporation Technical Team S.A. Telecommunications Data Services, Incorporated Telecommunications International, Inc. Tokai Attene Computer Company, Limited. UMW-EDS Technologies Sdn. Bhd. Uniti Pty Ltd Varitel Select, Inc. Varitel Video, Inc. Ward FSC. Ltd Worldmaster Marketing Pty Ltd YLYS Informatique S.A. American Network Leasing Partnership No. A5 American Network Leasing Partnership No. C4 American Network Leasing Partnership No. D2 EDS/Dockery & Walker JV Partnership EDS Exploitation SNC EDS, META, WAC JV Partnership APPENDIX S -- Page 4 209 Groupe Informatique de Developpement Pour L'Administration SNC Interactive Transaction Partners MLT Holding, L.P. Potomac General Research Group Pyns Ltd SCI Sogelyon Societe de Services Pour L'Informatisation de L'Administration SNC Worldlink Technologies Pty Ltd APPENDIX S -- Page 5 210 APPENDIX T INDEPENDENT ACCOUNTANTS' REPORT We have performed the procedures enumerated below, which were agreed to by General Motors Corporation ("General Motors") and Pension Benefit Guaranty Corporation ("PBGC"), solely to assist the users in evaluating management's assertion about General Motors' Material Transfers as determined under Section 9 of the Agreement between General Motors and the PBGC dated March 3, 1995 ("Agreement"), during the period March 3, 1995 through {date of GM's Statement under Section 9(c)(2)(D) or, if later, the date of GM's Statement under Section 9(c)(3)(ii)(B)(I) of the Agreement}, included in the accompanying List of Material Transfers prepared by General Motors in accordance with Section 9(c)(2)(D) and (if applicable) Section 9(c)(3)(ii)(B)(I) of the Agreement. The sufficiency of these procedures is solely the responsibility of the specified users of the report. Consequently, we make no representation regarding the sufficiency of the procedures described below either for the purpose for which this report has been requested or for any other purpose. The specific procedures to be performed would necessarily vary depending upon the nature of each item included on the List(s) of Material Transfers referred to above ("List"). However, they would be comprised of, at a minimum, the following procedures, including the reporting of the findings as a result of performing each procedure: - - Planning the performance of the procedures set forth herein. - - To obtain an understanding of the specified compliance requirements: -- Obtaining a copy of and reading the Agreement, and the amendments thereto, if any. -- Obtaining a copy of and reading the letter of the Comptroller of General Motors dated __________, 1995, and any successor letters of the Comptroller or any Comptroller letters related thereto, setting forth the procedures to be followed within General Motors for identifying and recording Material Transfers. - - Comparing amounts on the List to entries in the underlying accounting records. - - Comparing the foregoing entries and related amounts in the underlying accounting records to supporting documentation. 211 - - Selecting sample transactions from general ledger accounts and comparing them to supporting documentation and, for items constituting Material Transfers, comparing them to the List. - - Making inquiries of and/or obtaining representations from General Motors and Electronic Data Systems Corporation officials. - - Proving the arithmetic accuracy of the List and computations involved in determining and recording Material Transfers. These agreed-upon procedures are substantially less in scope than an examination, the objective of which is the expression of an opinion on the List. Accordingly, we do not express such an opinion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you. This report is intended solely for the information of General Motors management and the PBGC and should not be used by those who did not participate in determining the procedures. EX-10.(H) 3 REGRISTRATION RIGHTS AGREEMENT 1 EXHIBIT 10(h) REGISTRATION RIGHTS AGREEMENT By and Between GENERAL MOTORS CORPORATION and UNITED STATES TRUST COMPANY OF NEW YORK as Trustee of THE GENERAL MOTORS HOURLY-RATE EMPLOYEES PENSION PLAN 2 TABLE OF CONTENTS
PAGE ---- 1. Contribution of Registrable Securities. . . . . . . . . . . . . . . 2 2. Restrictions on Transfer . . . . . . . . . . . . . . . . . . . . . 4 3. Demand Transfers . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. Piggyback Registration . . . . . . . . . . . . . . . . . . . . . . 17 5. Holdback Period . . . . . . . . . . . . . . . . . . . . . . . . . . 20 6. Other Registration Rights . . . . . . . . . . . . . . . . . . . . . 21 7. Demand, Piggyback and Shelf Registration Procedures . . . . . . . . 25 8. Participation in Underwritten Transfers . . . . . . . . . . . . . . 27 9. Registration Expenses and Legal Counsel . . . . . . . . . . . . . . 27 10. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 28 11. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
EXHIBITS EXHIBIT A . . . . . . . . . . . . . Form of Transfer Agreement EXHIBIT B . . . . . . . . . . . . . Interest Rate Schedule EXHIBIT C . . . . . . . . . . . . . Form of Succession Agreement - i - 3 REGISTRATION RIGHTS AGREEMENT This Agreement is entered into on March 12, 1995, by and between General Motors Corporation, a Delaware corporation (sometimes referred to herein as "Issuer"), and United States Trust Company of New York, as trustee (the "Trustee") of a trust established under the General Motors Hourly-Rate Employees Pension Plan (the "Pension Plan"), for the account and on behalf of the Pension Plan (which shall thereby be deemed a party to this Agreement). Capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in Section 11. WHEREAS, Issuer intends, subject to the satisfaction of certain regulatory and other conditions, to contribute approximately 177 million shares of Class E Common Stock to the Pension Plan; and WHEREAS, the Pension Plan is prepared to accept the Class E Common Stock that may be contributed to it as described herein and to hold and dispose of any such Class E Common Stock on the terms and conditions hereinafter stated; and WHEREAS, the Pension Plan is the owner of shares of Class E Common Stock acquired by the Pension Plan pursuant to an Exchange and Registration Agreement, dated as of November 4, 1992 (the "Exchange Agreement"), by and among Issuer, the Pension Plan and the General Motors Retirement Program for Salaried Employees (the "Salaried Plan"); and WHEREAS, General Motors and the Pension Plan have entered into a Transfer Agreement, dated as of the date hereof, substantially in the form of Exhibit A attached hereto (as such agreement may be amended or modified from time to time, the "Transfer Agreement"), pursuant to which the Pension Plan has agreed to hold and dispose of the Class E Common Stock owned by the Pension Plan on the terms and conditions stated therein; and WHEREAS, the Trustee has been appointed by the named fiduciary of the Pension Plan (the "Named Fiduciary") (as determined in accordance with Section 402(a) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), to 4 manage any shares of Class E Common Stock held by the Pension Plan as described herein and to exercise all rights, powers and privileges appurtenant to such shares (subject to the authority of the Named Fiduciary to terminate such appointment and appoint one or more other investment managers for any such shares); and WHEREAS, the Trustee has full power and authority to execute and deliver this Agreement for the account and on behalf of the Pension Plan and to so bind the Pension Plan; NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Issuer and the Pension Plan agree as follows: 1. Contribution of Registrable Securities. (a) Issuer agrees that any contribution of Registrable Securities made by Issuer to the Pension Plan (each such contribution being hereinafter referred to as a "Contribution") shall be made only on such days as the New York Stock Exchange, Inc. ("NYSE") shall be open for trading (a "Business Day"). (b) The Pension Plan represents that it beneficially owns 17,511,372 shares of Class E Common Stock as of the date hereof (as determined pursuant to Section 16 of the Exchange Act (or any successor thereto) ("Section 16")) and agrees that, after the date hereof and until the final Contribution is made hereunder, it shall not acquire beneficial ownership of any additional shares of Class E Common Stock (as so determined), except pursuant to a Contribution made hereunder. Issuer agrees that if it makes multiple Contributions, either (i) no Contribution prior to the final Contribution will cause the Pension Plan to become a ten percent beneficial owner (as defined in Rule 16a-2 under the Exchange Act (or any successor thereto)) or (ii) Issuer will not propose to its stockholders any transaction that would result in a "sale" of shares of Class E Common Stock by the Pension Plan for purposes of Section 16 being deemed to occur (unless such sale is exempt under Section 16(b) of the Exchange Act (or any successor thereto) ("Section 16b")) prior to the date that is six months and one day after the final Contribution (or, if Section 16 is amended to change the period within which purchases and sales are matched - 2 - 5 for purposes of determining whether profits are recoverable by an issuer, the date that is one day after the expiration of a period of such length commencing on the date the final Contribution is made); provided, that is understood that nothing herein shall prohibit Issuer from submitting any such transaction to its stockholders prior to such date so long as any such sale is deemed to occur on or after such date. (c) Issuer agrees that it shall give the Trustee and its valuation adviser on behalf of the Pension Plan notice by teleconference after the close of normal trading on the NYSE but no later than 5:00 p.m., New York time, on the Business Day prior to the Business Day on which Issuer contemplates making such Contribution that it contemplates making a Contribution; provided, however, that such notice shall be revocable by Issuer at any time in its sole discretion prior to the conclusion of the teleconference referred to in Section 1(d). In such teleconference, Issuer shall state the date on which Issuer contemplates making the proposed Contribution and a range for the number of Registrable Securities which may be contributed, and the Trustee, together with its valuation adviser, will estimate a value per share, based on the closing price on the day of notice on the NYSE of Class E Common Stock, at various points within such range. (d) As soon as practicable, and in any event prior to 10:30 a.m., New York time, on the day of the proposed Contribution, Issuer will give the Trustee and its valuation adviser on behalf of the Pension Plan notice by teleconference of its continued interest, if any, in making a Contribution. In such teleconference, Issuer will make one or more estimates of the specific number of Registrable Securities which Issuer may contribute, and the Trustee, together with its valuation adviser, will state the value per share it would assign for the Contribution based on each such estimate. If Issuer so decides, it shall irrevocably commit itself in such teleconference to contribute a number of Registrable Securities equal to one of such estimates, and the Trustee's valuation adviser shall be irrevocably committed to opine to the applicable value per share previously stated by it in such teleconference. The Contribution, if any, shall be effective at the end of such teleconference, and the value per share for purposes of such Contribution shall be such stated value. Immediately after the teleconference in which a Contribution is made, Issuer shall deliver instructions to its transfer agent to issue the Registrable - 3 - 6 Securities so contributed (in the form described below) and to register such Registrable Securities in the name of the Pension Plan or its nominee, and Issuer shall confirm such Contribution by delivering copies of such transfer instructions to the Trustee. As soon as practicable after the teleconference, and in any case no later than 5:00 p.m., New York time, on the Business Day on which such Contribution is made, the Trustee's valuation adviser will deliver to the Trustee, with a copy to Issuer, its written valuation opinion, confirming the valuation given in the teleconference. (e) Delivery of certificates representing the duly authorized, validly issued, fully paid and nonassessable shares of Class E Common Stock contributed in a Contribution shall be made to the Pension Plan at the offices of the Trustee for the Pension Plan (or such other place as may be mutually agreed upon), in such form as shall permit, subject to the provisions of this Agreement, the Transfer of the Registrable Securities through normal means of settlement (subject to the proviso in the next following sentence), not later than 5:00 p.m., New York time, on the fourth full Business Day after such Contribution. Such certificates shall be in due and proper form for delivery under applicable corporate law and shall be accompanied by such other documents and certificates as may be reasonably requested by the Trustee to confirm that the Pension Plan, upon receipt of such certificates, may, subject to the provisions of this Agreement, Transfer record and beneficial ownership of the shares of Class E Common Stock represented by such certificates; provided, however, that, subject to Section 1(f) below, each such certificate representing the Registrable Securities shall conspicuously bear legends in substantially the following form: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A REGISTRATION RIGHTS AGREEMENT, DATED MARCH 12, 1995, BY AND BETWEEN THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE OF A TRUST - 4 - 7 ESTABLISHED UNDER THE GENERAL MOTORS HOURLY RATE EMPLOYEES PENSION PLAN, THAT CONTAINS, AMONG OTHER THINGS, CERTAIN RESTRICTIONS ON THE TRANSFER OF SUCH SECURITIES. A COPY OF SUCH REGISTRATION RIGHTS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST." The certificates representing shares of Class E Common Stock held by the Pension Plan and acquired other than pursuant to a Contribution shall be promptly surrendered to Issuer in order that Issuer's transfer agent may place such legends upon them. (f) Issuer will instruct its transfer agent that the legends set forth in Section 1(e) shall be removed upon the Pension Plan's Transfer of shares of Class E Common Stock if such Transfer is made in accordance with all applicable provisions of this Agreement; provided, however, that if such Transfer is a Negotiated Transfer (as defined below) that is not registered under the Securities Act, the first legend shall remain on the certificates representing such shares until such time as the restrictions set forth in such legend cease to be applicable. (g) The Pension Plan represents and warrants that the Pension Plan, together with its investment managers, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Registrable Securities. The Pension Plan understands and acknowledges that the Contributions have not been and will not be registered under the Securities Act or any state securities law and that the Registrable Securities may not be the subject of any Transfer except as expressly permitted by this Agreement. 2. Restrictions on Transfer. (a) The Pension Plan shall not make any Transfer of any Registrable Securities other than, in each case, in accordance with the terms and conditions of this Agreement, pursuant to (i) a Public Transfer (as defined below), (ii) a Negotiated Transfer, (iii) as described in subsection (d), (e), (f), (g) or (h) below, (iv) as described in Section 4 or 6 below, (v) from and after such time as the Pension Plan reduces its ownership of the Registrable Securities to less than 50 million shares of Class E Common Stock, pursuant to Rule 144 under the Securities Act or any successor - 5 - 8 thereto ("Rule 144") (without giving effect to the provisions of paragraph (k) (or any successor thereto) of Rule 144) and (vi) from and after such time as the Pension Plan reduces its ownership of the Registrable Securities to less than 25 million shares of Class E Common Stock, pursuant to Rule 144, (vii) a Transfer to Issuer or a wholly-owned direct or indirect subsidiary of Issuer pursuant to a self-tender offer or otherwise and (viii) a Transfer pursuant to a merger or consolidation in which Issuer or a wholly-owned direct or indirect subsidiary of Issuer is a constituent corporation. Except as provided in Section 6(b), no Transfer described in clause (iii), (iv), (v), (vi), (vii) or (viii) of the preceding sentence shall be considered a Demand Transfer (as defined below). (b) The Pension Plan shall not make any Transfer of Registrable Securities pursuant to a Demand Registration Statement (as defined below), a Shelf Registration Statement (as defined below) or a registration statement pursuant to a Piggyback Registration (as defined below) or a Strategic Partner Demand Registration (as defined below) other than in accordance with the plan of distribution described therein. (c) The Pension Plan shall not make any Transfer of securities convertible into or exercisable or exchangeable for the Registrable Securities or any other securities the value of which is derived from the Registrable Securities without obtaining the prior written consent of Issuer to such Transfer. (d) Notwithstanding the provisions of this Agreement to the contrary, the Pension Plan may at any time deliver to Issuer a written notice that the Pension Plan proposes to make a Transfer of Registrable Securities to or for the benefit of an employee benefit plan maintained or contributed to by Issuer or any of its affiliates in connection with the satisfaction of ordinary course funding obligations or investment objectives with respect to such employee benefit plan. Each notice of a proposed Transfer pursuant to this Section 2(d) shall be delivered a reasonable period of time before such proposed Transfer and, in any event, not less than 30 days before such proposed Transfer. The Pension Plan shall establish, to the reasonable satisfaction of Issuer, that such proposed Transfer is in compliance with ERISA, federal and state securities laws and regulations and other applicable laws and regulations. Notwithstanding the foregoing, the Pension Plan shall not effect any such Transfer if Issuer's legal counsel advises - 6 - 9 Issuer and the Pension Plan in writing that such Transfer would constitute a "prohibited transaction" (as described in Section 4975 of the Internal Revenue Code of 1986, as amended), unless the Pension Plan establishes to the reasonable satisfaction of Issuer that an exemption from such Section is available. (e) Notwithstanding the provisions of this Agreement to the contrary, the Pension Plan may at any time effect a Transfer by tendering any or all of the Registrable Securities into an exchange offer, a tender offer or a request or invitation for tenders (as such terms are used in Sections 14(d) or 14(e) of the Exchange Act and the rules and regulations of the Commission thereunder) (collectively, a "tender offer")) for Class E Common Stock if (X) such Transfer is effected within the 24-hour period immediately prior to the then scheduled expiration time for such tender offer, and (Y) at the time the Pension Plan proposes to effect such Transfer: (i) Issuer (A) does not have in effect a stockholders rights plan or (B) has in effect a stockholders rights plan but there has been a redemption, revocation or similar invalidation of the preferred stock or other rights issued under such stockholders rights plan (the "Rights"), in either case as a result of (X) action of the Board of Directors of Issuer (or any committee thereof) in connection with such tender offer (including as a result of a finding that such tender offer was a "permitted offer" under the terms of such stockholders rights plan) or (Y) a final and non-appealable order of a court of competent jurisdiction issued in connection with such tender offer in response to a challenge to the validity and/or effects of such stockholders rights plan or Rights; or (ii) Issuer (A) does not have in effect a stockholders rights plan or (B) has in effect a stockholders rights plan but there has been a redemption, revocation or similar invalidation of any Rights issued thereunder, in either case other than as a result of the matters described in clause (i) above and other than as a result of a court order of the type described in clause (i) above that has not become final and non-appealable, and (X) the Board of Directors of Issuer has not recommended rejection of such tender offer pursuant to Rule 14e-2(a) under the Exchange Act or any successor thereto - 7 - 10 ("Rule 14e-2(a)"), or (Y) at least half of the members of the Board of Directors of Issuer who are not officers or employees of Issuer and who are not representatives, nominees or affiliates of the bidder (as defined in Rule 14d-1(c) under the Exchange Act or any successor thereto) (the "Bidder") making such tender offer (collectively, the "Independent Directors") did not recommend rejection of such tender offer when the Board of Directors of Issuer determined the position of Issuer with respect to such tender offer as contemplated by Rule 14e-2(a) or (Z) there are fewer than two members of the Board of Directors of Issuer that are Independent Directors at the time the Board of Directors of Issuer considers such tender offer; or (iii) Issuer (A) does not have in effect a stockholders rights plan or (B) has in effect a stockholders rights plan but there has been a redemption, revocation or similar invalidation of any Rights issued thereunder, in either case other than as a result of the matters described in clause (i) above and other than as a result of a court order of the type described in clause (i) above that has not become final and non-appealable and other than as a result of a proposal initiated, recommended, endorsed, supported or encouraged, directly or indirectly, publicly or privately, by the Pension Plan (it being understood that, for purposes of this subsection (iii), a vote by the Pension Plan in favor of any such proposal shall constitute support for such proposal), and both (X) the Pension Plan, after consultation with its legal counsel and financial advisors, has concluded in good faith that the Minimum Tender Condition with respect to such tender offer will likely be satisfied without giving effect to any shares of Class E Common Stock tendered or to be tendered into such tender offer by the Pension Plan and (Y) after the date of the commencement of such tender offer and prior to the 24-hour period immediately prior to the then scheduled expiration time of such tender offer, Issuer has not given written notice to the Pension Plan that such Transfer may not be made under this subsection (iii), which notice included the good faith determination of the Board of Directors of Issuer as to the Put Price as contemplated by Section 2(f)(iii) (or, if given, such notice has been withdrawn in writing). - 8 - 11 If, at any time after the Pension Plan has made a Transfer by tendering Registrable Securities into a tender offer pursuant to this Section 2(e), the Bidder making such tender offer decreases the percentage or number of shares of Class E Common Stock being solicited for purchase, decreases the amount or changes the form of consideration offered to tendering stockholders or otherwise makes a material change or waives a material condition in the terms of such tender offer such that the then scheduled expiration date of such tender offer is extended, then the Pension Plan shall, upon the request of Issuer, withdraw such Registrable Securities from such tender offer as promptly as practicable, subject to the Pension Plan's right to tender Registrable Securities again as contemplated by this Agreement. If the Pension Plan is not permitted to make a Transfer of Registrable Securities pursuant to Section 2(g), promptly (and in any event within one Business Day after any public announcement with respect thereto) after the Board of Directors of Issuer determines the position of Issuer with respect to any tender offer as contemplated by Rule 14e-2(a), Issuer shall give the Pension Plan written notice of such position by the Board of Directors of Issuer and by the Independent Directors as described in subsection (ii) above. If there are fewer than two members of the Board of Directors of Issuer that are Independent Directors at the time the Board of Directors of Issuer considers such tender offer, such notice shall so state. If, based on such positions by the Board of Directors of Issuer and the Independent Directors, a Transfer to be made by tendering into such tender offer would be permitted only by subsection (iii) of this Section 2(e) (excluding for purposes of such determination the conditions set forth in clauses (X) and (Y) of such subsection (iii)), Issuer shall promptly commence arranging financing so that it will be able to pay in full all amounts due in connection with any exercise of the Put Right (as defined below) in connection with such tender offer and shall use all commercially reasonable efforts to obtain such financing so as to pay all such amounts as and when due (it being understood that the obligation of Issuer to make payment at the Put Closing (as defined below) shall be absolute and that compliance with this sentence shall not relieve Issuer of its obligations under this Agreement or excuse performance hereunder). (f) (i) If the Pension Plan in good faith desires to effect a Transfer of Registrable Securities by tendering into - 9 - 12 a tender offer and such Transfer would be permitted only by subsection (iii) of Section 2(e) (assuming that Issuer has not and will not give the notice described in such subsection (iii) that such Transfer may not be made thereunder) then the Pension Plan shall, no later than 96 hours prior to the then scheduled expiration time for such tender offer, deliver to Issuer a written notice (the "Tender Notice") of such proposed tender that specifies the number of shares of Registrable Securities proposed to be so tendered. If, after the delivery of such Tender Notice and prior to the then scheduled expiration time for such tender offer, the Bidder making such tender offer amends the terms thereof or another Bidder commences a tender offer for shares of Class E Common Stock, then the Pension Plan may revoke such Tender Notice by delivering written notice thereof to Issuer at any time prior to the then scheduled expiration time for the tender offer that was the subject of such Tender Notice. No such revocation shall limit the Pension Plan's right to deliver a Tender Notice with respect to any tender offer, including any such amended tender offer or new tender offer. (ii) If (A) the Pension Plan has delivered, and not revoked, a Tender Notice with respect to a tender offer, each in accordance with subsection (i), (B) Issuer has given (and not withdrawn) the notice described in subsection (iii) of Section 2(e) that such Transfer may not be made under such subsection (iii)), (C) the Minimum Tender Condition with respect to such tender offer has been satisfied and shares required to satisfy such Minimum Tender Condition have been accepted for purchase and purchased pursuant to such tender offer and (D) effecting a Transfer of Registrable Securities to Issuer pursuant to an exercise of the Put Right would not violate the Transfer Agreement, then the Pension Plan shall have the right (the "Put Right") to require Issuer to purchase up to the number of shares of Registrable Securities specified in the Tender Notice multiplied by, if applicable, the proration fraction applied to determine the number of shares of Class E Common Stock purchased from each tendering stockholder pursuant to such tender offer (the "Maximum Share Number"). The purchase price per share at which Issuer shall be required to purchase such Registrable Securities shall be equal to the price per share of Class E Common Stock paid in such tender offer (or, to the extent such tender offer price - 10 - 13 was paid in consideration other than cash, the cash equivalent of the fair market value thereof as of the expiration time of such tender offer determined as described below) (the "Put Price"). The Pension Plan may exercise the Put Right, in whole or in part, by delivering to Issuer a written notice (the "Exercise Notice") of such exercise that specifies the number of Registrable Securities to be purchased pursuant to such exercise (which number shall not exceed the Maximum Share Number). The delivery of the Exercise Notice shall constitute an agreement binding upon the Pension Plan to sell, and upon Issuer to purchase, such Registrable Securities. The term of the Put Right shall commence immediately after the Bidder making such tender offer accepts for purchase and purchases shares of Class E Common Stock tendered pursuant to such tender offer and shall terminate ten days after Issuer gives the Pension Plan notice that such purchase has occurred. (iii) If any portion of the tender offer price for any tender offer is payable in consideration other than cash: (A) any notice given by Issuer to the Pension Plan under subsection (iii) of Section 2(e) that a Transfer may not be made under such subsection (iii) shall include a good faith determination by the Board of Directors of Issuer as to the Put Price; (B) if the Put Right has become exercisable as described in subsection (ii) above in connection with such tender offer, within 24 hours after the expiration time for such tender offer, Issuer shall deliver to the Pension Plan a notice (the "Put Price Notice") confirming the (or, if necessary, setting forth a revised) good faith determination of Issuer's Board of Directors as to the Put Price; and (C) in the Exercise Notice, if any, the Pension Plan shall either agree to the Put Price as set forth in the Put Price Notice or set forth its own good faith determination as to the Put Price. Each such determination shall separately identify the value attributed to each component of the consideration offered in such tender offer. If the Pension Plan does not so agree to the Put Price as set forth in the Put Price Notice and Issuer and the Pension Plan, negotiating in good faith, are unable to reach an agreement on the Put Price within 15 days after delivery of an Exercise Notice, an investment banking firm shall be selected and instructed to determine the Put Price as contemplated herein and submit to Issuer and the Pension Plan promptly (and in any event no later than 30 days - 11 - 14 after the delivery of the Exercise Notice) a written report setting forth such determination. If Issuer and the Pension Plan are unable to agree on an investment banking firm within 15 days after delivery of an Exercise Notice, a firm shall be selected by lot (until a firm so selected has agreed to accept the engagement to determine the Put Price as contemplated herein) from the top eight New York-based investment banking firms, as determined in each case by dollar volume of equity offerings in which such firms acted as lead underwriters, on the basis of the most recently available information, after Issuer and the Pension Plan have each eliminated one such firm and after the elimination of each such firm that represented the Bidder, Issuer or the Pension Plan in connection with such tender offer or, within the 365-day period prior to the delivery of the Put Notice, otherwise performed substantial services for the Bidder. If, as a result of the selection process set forth in the preceding sentence, no such firm is eligible to be so selected or no such firm accepts the engagement, Issuer and the Pension Plan shall promptly agree on an alternative process to promptly select an investment banking firm to determine the Put Price as contemplated herein. In any case, the fees and expenses of such firm shall be borne by Issuer, and the determination of such firm shall be final and binding upon all parties; provided, that if such determination results in a Put Price greater than the Put Price set forth by the Pension Plan in the Exercise Notice, the Put Price determined by such firm shall be deemed to equal the Put Price set forth in the Exercise Notice for purposes hereof. Issuer and the Pension Plan shall cooperate and provide each other (and any such firm) with the information (in reasonable detail) used in making its determinations with respect to the Put Price. Issuer shall cooperate with any investment banking firm engaged to determine the Put Price hereunder, including providing information as reasonably requested by such firm in connection with such determination. (iv) The closing (the "Put Closing") of the purchase and sale of the Registrable Securities specified in the Exercise Notice shall occur no later than 90 days after the delivery of the Exercise Notice (or, if such day is not a Business Day, the immediately following Business Day) (the "Final Date"), at a time and place mutually agreeable to Issuer and the Pension Plan. If Issuer and the Pension Plan are unable to agree on - 12 - 15 a time and place for the Put Closing, the Put Closing shall be at 10:00 a.m. (local time) at the principal executive offices of Issuer on the Final Date; provided, that the Issuer may specify that the Put Closing occur on any Business Day prior to the Final Date by giving written notice to the Pension Plan at least two Business Days prior to the date so specified. At the Put Closing, Issuer shall pay to the Pension Plan, by wire transfer of immediately available funds to the account designated in writing by the Pension Plan, an amount (the "Base Purchase Price") equal to (Y) the Put Price, multiplied by (Z) the number of shares of Registrable Securities to be purchased, together with interest on the Base Purchase Price at the interest rate determined as set forth in Exhibit B attached hereto for the period from and including the fifth Business Day after the delivery of the Exercise Notice through but excluding the day the Base Purchase Price (and all accrued interest thereon) is paid in full (calculated on the basis of actual days elapsed and a 365-day year). At the Put Closing, the Pension Plan shall deliver to Issuer certificates representing the Registrable Securities to be sold to Issuer, together with duly executed stock powers endorsed in blank, and shall execute and deliver such other certificates, agreements and instruments as Issuer may reasonably request to effect such sale (which shall include a representation and warranty of the Pension Plan that all Registrable Securities sold to Issuer pursuant to the Put Right are owned of record by the Pension Plan, free and clear of any liens, pledges, security interests, encumbrances, equities, claims, options or limitations of whatever nature (other than those contemplated by this Agreement) but which shall not include any further representations and warranties from the Pension Plan). (g) Notwithstanding any provisions of this Agreement to the contrary, at any time that the Pension Plan owns Registrable Securities that constitute 7.5% or less of the Class E Common Stock on a fully-diluted basis (calculated for such purpose without giving effect to options, warrants or other rights exercisable for the Class E Common Stock issued or issuable pursuant to any employee stock option or other benefit plan maintained by Issuer), the Pension Plan may effect a Transfer by tendering any or all of the Registrable Securities into a tender offer for Class E Common Stock. - 13 - 16 (h) Nothing in this Agreement shall prohibit Issuer and the Pension Plan from at any time agreeing to effect or effecting a Transfer of Registrable Securities from the Pension Plan to Issuer or any of its consolidated subsidiaries. If Issuer or any of its consolidated subsidiaries intends to purchase Class E Common Stock on the open market for or on behalf of any employee benefit plan maintained or contributed to by Issuer, any of its consolidated subsidiaries or any of their predecessors or successors, it shall make reasonable efforts to consult in good faith with the Pension Plan with respect to the possibility of purchasing such shares from the Pension Plan. (i) Prior to making any Transfer of Registrable Securities pursuant to clause (v) or (vi) of the first sentence of Section 2(a), the Pension Plan shall deliver to Issuer an opinion of counsel reasonably satisfactory to Issuer to the effect that such Transfer may be made without registration under the Securities Act in reliance upon Rule 144. (j) No Transfer of Registrable Securities in violation of this Agreement shall be made or recorded on the books of Issuer and any such Transfer shall be void and of no effect. 3. Demand Transfers. (a) The Pension Plan may from time to time deliver to Issuer a written notice that the Pension Plan proposes to make a Transfer of Registrable Securities either (i) pursuant to an underwritten public offering reasonably designed to achieve a broad public distribution of the securities being offered (a "Public Transfer") or (ii) subject to Section 3(h), pursuant to a negotiated transaction or series of related transactions effected on the same date and at the same price per share with one or more transferees (each such transaction or series of related transactions described in this clause (ii), whether registered or not, being referred to herein collectively as a "Negotiated Transfer"). Public Transfers and Negotiated Transfers, whether made pursuant to a Demand Registration Statement, a Shelf Registration Statement or without a registration statement, are referred to herein collectively as "Demand Transfers." The number of Public Transfers (including any Transfer considered a Public Transfer under Section 6(b)) and Negotiated Transfers that are registered under the Securities Act that may be effected by the Pension Plan in any 12- - 14 - 17 month period shall not exceed two in the aggregate; provided, that there shall be no numerical limit hereunder on the number of Negotiated Transfers that may be effected by the Pension Plan without registration under the Securities Act. Notwithstanding anything to the contrary in the immediately preceding sentence, from and after the first time at which an issuer other than General Motors shall become the Issuer pursuant to the succession provisions of Section 12(a), the Pension Plan shall not effect more than two Demand Transfers (including any Transfer considered a Public Transfer under Section 6(b)) in any 12-month period. For purposes of this Agreement, a Demand Transfer is deemed to be effected (x) if the Demand Transfer is to be made pursuant to a Demand Registration Statement, on the effective date of such Demand Registration Statement and (y) if the Demand Transfer is to be made either pursuant to a Shelf Registration Statement, or without a registration statement, on the date of the consummation of such Demand Transfer. A registered transaction pursuant to a Demand Registration Statement shall not be considered a Demand Transfer unless and until the applicable registration statement has become effective pursuant to the Securities Act (unless the failure to become effective is due solely to a breach by the Pension Plan of its obligations hereunder) and in the case of a Shelf Registration Statement, unless and until Registrable Securities are actually Transferred pursuant to the Shelf Registration Statement. The Pension Plan may withdraw any Demand Transfer request prior to the effective date of a Demand Registration Statement, in the case of a Demand Transfer to be made pursuant to a Demand Registration Statement, prior to the commencement of an offering of Registrable Securities, in the case of a Public Transfer to be made pursuant to a Shelf Registration Statement, or prior to the consummation of a Transfer of Registrable Securities, in the case of a Negotiated Transfer to be made either pursuant to a Shelf Registration Statement or without a registration statement, in each of which cases such request shall not be considered a Demand Transfer. (b) At any time after the fourth anniversary of the date of the initial Contribution pursuant to Section 1, so long as the Pension Plan owns not less than 50 million shares of Registrable Securities, the Pension Plan may deliver to Issuer a written request that Issuer prepare and file with the Commission a registration statement on the appropriate form under the Securities Act (together with any amendments or supplements thereto, the "Shelf Registration Statement"), registering under the Securities - 15 - 18 Act up to the lesser of (i) 40 million shares of Registrable Securities or (ii) the amount of Registrable Securities that, if Transferred, would result in the Pension Plan owning 50 million shares of Registrable Securities, in either case for offering and sale by the Pension Plan in Public Transfers and Negotiated Transfers from time to time pursuant to Rule 415 under the Securities Act or any successor thereto ("Rule 415"). Subject to Sections 3(f) and 12(a), as promptly as reasonably practicable after the receipt of the Pension Plan's request for the filing of a Shelf Registration Statement, Issuer shall file a Shelf Registration Statement registering the number of shares of Registrable Securities so requested. Subject to Sections 3(f) and 12(a), at any time after Issuer has filed a Shelf Registration Statement and until such time as the Pension Plan has reduced its ownership of Registrable Securities to less than 50 million shares of Class E Common Stock, if fewer than 20 million shares of Registrable Securities remain subject to the Shelf Registration Statement, Issuer shall, if and to the extent requested by the Pension Plan, prepare and file with the Commission an additional Shelf Registration Statement (utilizing a combined prospectus as provided for by Rule 429 under the Securities Act or any successor thereto ("Rule 429")) as promptly as reasonably practicable after receipt of such request, registering under the Securities Act up to the number of shares of Registrable Securities equal to the lesser of (i) the difference between 40 million and the number of such shares remaining subject to the Shelf Registration Statement then in effect and (ii) the amount of such Registrable Securities that, if Transferred, would result in the Pension Plan owning 50 million shares of Registrable Securities. (c) Notwithstanding any other provision of this Agreement, if within 395 days following the delivery of a written request for a Demand Transfer by the Pension Plan, such Demand Transfer has not been consummated, such request has not been withdrawn or a Liquidity Event has not occurred and (i) in the case of a Public Transfer, either Issuer has not filed the related registration statement or there has not been a period of at least 45 consecutive days following the date on which the Commission has completed its review, if any, of the related Demand Registration Statement (or, if a Shelf Registration Statement is then effective, following the date of such request) without the occurrence of a - 16 - 19 Blackout Period, (ii) in the case of a Negotiated Transfer that is to be registered under the Securities Act pursuant to this Agreement, either Issuer has not filed the related registration statement or there has not been a period of at least 20 consecutive days following the date on which the Commission has completed its review, if any, of the related Demand Registration Statement (or, if a Shelf Registration Statement is then effective, following the date of such request) without the occurrence of a Blackout Period or (iii) in the case of a Negotiated Transfer that is not to be registered under this Agreement, there has not been a period of at least 20 consecutive days following the date of such request without the occurrence of a Blackout Period, then the Pension Plan may, at the end of such 395-day period, deliver to Issuer a written request for a Demand Transfer, and Issuer shall take all reasonable actions that are necessary to permit the Pension Plan to effect such Demand Transfer, including, if such Demand Transfer is to be registered under the Securities Act pursuant to this Agreement, and a Shelf Registration Statement is not then effective, (i) preparing and filing a registration statement for the Transfer of the Registrable Securities requested to be registered in connection with such Demand Transfer within a period of 30 days following the delivery of such request and (ii) providing the Pension Plan with a period of at least 45 days following the date on which the Commission has completed its review, if any, of such registration statement, or, if such Demand Transfer is not to be registered under the Securities Act pursuant to this Agreement or a Shelf Registration Statement is then effective, the date of the delivery of such request, in either case, to allow for the marketing and Transfer of such Registrable Securities. Without limiting the generality of the foregoing, Issuer shall, within 60 days following the date of delivery of the Pension Plan's request, terminate any proposal or plan or make any public disclosure, that, in either case, would otherwise give rise to Issuer's right of postponement pursuant to Section 3(f). All of the Pensions Plan's rights and all of Issuer's obligations under this Section 3(c) shall terminate from and after the time the Pension Plan has reduced its ownership of Registrable Securities to less than 25 million shares of Class E Common Stock. (d) Each notice of a proposed Demand Transfer shall be delivered a reasonable period of time before the proposed Transfer and, in any event, (i) in connection with a proposed Public Transfer pursuant to a Demand Registration Statement, not less than 30 - 17 - 20 days before the anticipated filing date of such Demand Registration Statement if Issuer is eligible to use Form S-3 or any successor form ("Form S-3") or 45 days before such date in the event Issuer is not eligible to use such form, (ii) in connection with a proposed Negotiated Transfer pursuant to a Demand Registration Statement, not less than 20 days before the anticipated filing date of such Demand Registration Statement if Issuer is eligible to use Form S-3 or 45 days before such date in the event Issuer is not eligible to use such form, (iii) in connection with a proposed Transfer pursuant to a Shelf Registration Statement, not less than 10 days before the proposed commencement of such proposed Transfer and (iv) in connection with a proposed Negotiated Transfer that is not to be registered under the Securities Act pursuant to this Agreement, not less than five days before the proposed consummation of such Negotiated Transfer. Each notice of a proposed Demand Transfer shall specify whether such Transfer will be a Public Transfer or a Negotiated Transfer, the approximate number of Registrable Securities proposed to be Transferred, the proposed timetable for the transaction and the anticipated per share price range for such Transfer. (e) Unless a Shelf Registration Statement is effective with respect to the full amount of shares proposed to be subject to a Demand Transfer, (i) each notice of a proposed Public Transfer shall constitute a request that Issuer register the proposed Transfer of the Registrable Securities under the Securities Act on the appropriate form and (ii) in connection with any notice of a proposed Negotiated Transfer, the Pension Plan may request that Issuer register the proposed Transfer of the Registrable Securities; provided, however, that if the Pension Plan does not request that Issuer register such proposed Transfer of the Registrable Securities, the Pension Plan shall establish, to the reasonable satisfaction of Issuer, that such Negotiated Transfer may be made without registration under applicable securities laws. In the case of each request for registration pursuant to the foregoing sentence (a "Demand Registration"), Issuer shall file the requested registration statement (together with any amendments or supplements thereto, a "Demand Registration Statement") as promptly as reasonably practicable, subject to postponement as provided in Section 3(f); provided, however, that Issuer shall not be required to register a proposed Negotiated Transfer of the Registrable Securities if Issuer's legal counsel advises in writing that (i) such registration would not be permitted under applicable federal - 18 - 21 and state securities laws and regulations, (ii) if such Transfer is not so registered, the shares Transferred in such Transfer would not constitute "restricted securities" (as defined in Rule 144) in the hands of the transferee in such proposed Transfer or (iii) such registration is not required under applicable federal securities laws and Issuer and the Pension Plan reasonably agree that the shares Transferred in such Transfer would constitute "restricted securities" in the hands of the transferee in such proposed transaction regardless of registration. (f) Subject to Section 3(c), Issuer may postpone the filing or effectiveness of any Demand Registration Statement, the initial filing or effectiveness of any Shelf Registration Statement or the making of any Demand Transfer, whether registered or not, at any time if Issuer determines, in its reasonable judgment, that (i) such action or proposed action would interfere with any proposal or plan by Issuer or any of its affiliates to engage in any material acquisition, merger, consolidation, tender offer, securities offering (including any proposal or plan to register or offer Class E Common Stock existing as of the time of the Pension Plan's notice to Issuer of a proposed Demand Transfer) or other material transaction or (ii) would require Issuer to make a public disclosure of previously non-public material information and Issuer shall promptly notify the Pension Plan of any postponement pursuant to this Section 3(f). Issuer agrees that it will terminate any such postponement as promptly as reasonably practicable and will promptly notify the Pension Plan of such termination. In making any such determination to initiate or terminate a postponement, Issuer shall not be required to consult with or obtain the consent of the Pension Plan or any investment manager therefor (including the Trustee), and any such determination shall be Issuer's responsibility alone, and neither the Pension Plan nor any investment manager for the Pension Plan (including the Trustee) shall be responsible or have any liability therefor. (g) The Pension Plan may select the lead underwriter and co-manager or co-managers to administer any Public Transfer of Registrable Securities from a list of eligible lead underwriters and of eligible co-managers, respectively, prepared for each such purpose by Issuer and delivered to the Pension Plan on the date hereof (as such list may be revised by Issuer from time to time). The list of eligible lead underwriters shall contain the names of no fewer than five Persons, each of which shall be among the top - 19 - 22 six underwriting firms, and the list of eligible co-managers shall contain the names of no fewer than seven Persons, no fewer than six of which shall be among the top ten underwriting firms, as determined in each case by dollar volume of equity offerings in which such firms acted as lead underwriters, on the basis of the most recently available information. The Pension Plan shall have the right to request that Issuer add a Person to the list of eligible lead underwriters and of eligible co-managers, provided that Issuer shall have no obligation to consent to any such request. The Pension Plan may not select any Person to be lead underwriter or co-manager unless such Person shall have agreed to use its reasonable best efforts to effect a broad public distribution of the Registrable Securities to be sold in the Public Transfer and to use its reasonable best efforts not to sell to any one Person (or group of related Persons) (whether such Person (or group of related persons) is buying for its own account or as a fiduciary on behalf of one or more accounts) Registrable Securities constituting more than 2% of the Class E Common Stock then outstanding. The selection of counsel to such lead underwriter and co-manager or co-managers shall be subject to the consent of Issuer, which consent shall not be unreasonably withheld. (h) The Pension Plan shall not make a Negotiated Transfer to (i) any one Person (or group of related Persons) (whether such Person (or group of related Persons) is buying for its own account or as a fiduciary on behalf of one or more accounts) of more than 2% of the Class E Common Stock then outstanding or (ii) any one Person (or group of related Persons) if such Person (or group of related Persons) is then required to file, or has filed, or as a result of such Negotiated Transfer will be required to file (to the knowledge of the Pension Plan after reasonable inquiry) a Schedule 13D under the Exchange Act (or any successor thereto) with respect to the Class E Common Stock. If the Registrable Securities subject to any Negotiated Transfer are not to be registered under the Securities Act, the Pension Plan shall, prior to effecting such Negotiated Transfer, cause each transferee in such Negotiated Transfer to represent and warrant to the Pension Plan and Issuer in writing that (i) such transferee is acquiring such Registrable Securities for its own account, or for one or more accounts, as to each of which such transferee exercises sole investment discretion, for investment purposes only and not with a view to, or for resale in connection with, any distribution (within the meaning of the Securities Act) and (ii) such transferee does not constitute an - 20 - 23 underwriter (within the meaning of the Securities Act) with respect to the acquisition of such Registrable Securities from the Pension Plan. (i) Issuer shall make available members of the management of Issuer and its affiliates for reasonable assistance in the selling efforts relating to any public offering of the Registrable Securities pursuant to a Public Transfer, to the extent customary for public offerings (including, without limitation, to the extent customary, senior management attendance at due diligence meetings with underwriters and their counsel and road shows), and for such assistance as is reasonably requested by the Pension Plan and its counsel in the selling efforts relating to any Negotiated Transfer. 4. Piggyback Registration. (a) In the event that Issuer proposes to register any shares of Class E Common Stock for its own account or for the account of any holder or holders of Class E Common Stock (other than the Strategic Partner) pursuant to contractual rights of such holder or holders or otherwise, in either case under the Securities Act in an underwritten public offering (other than on a registration statement on Form S-4 or S-8 under the Securities Act or any successors thereto, a registration statement for a delayed or continuous offering pursuant to Rule 415, a registration statement covering securities convertible into or exercisable or exchangeable for Class E Common Stock, an offering of securities solely to Issuer's existing shareholders or otherwise in connection with any offer to exchange securities) (together with any under- written public offering of Class E Common Stock pursuant to Rule 415 as described in Section 4(b) below, a "Piggyback Registration"), Issuer shall give the Pension Plan written notice of such proposed registration no less than 30 days before the date of filing anticipated by Issuer in connection with such registration. Subject to Sections 4(d), (e) and (f), Issuer shall include in such registration all Registrable Securities held by the Pension Plan with respect to which Issuer has received a written request for inclusion therein within 15 days after Issuer's notice of such proposed registration. (b) In the event that Issuer proposes to offer for its own account or for the account of any holder or holders of Class E Common Stock (other than the Strategic Partner) pursuant to - 21 - 24 contractual rights of such holder or holders or otherwise, in either case any shares of Class E Common Stock in any underwritten public offering pursuant to Rule 415, Issuer shall give the Pension Plan written notice of such proposed offering no less than 30 days before the date of commencement of distribution anticipated by Issuer in connection with such offering. Subject to Sections 4(d), (e) and (f), Issuer shall include in such offering all such Registrable Securities with respect to which Issuer has received a written request for inclusion therein within 10 days after Issuer's notice of such proposed offering. Without limiting the generality of the foregoing, in order to so include such Registrable Securities, Issuer shall, to the extent necessary, file an amendment to the registration statement then in effect for the Class E Common Stock or an additional registration statement for the Class E Common Stock that uses a combined prospectus pursuant to Rule 429. (c) Issuer may select the lead underwriter and co-manager or co-managers to administer any offering of Registrable Securities pursuant to a Piggyback Registration; provided, however, that if Registrable Securities held by the Pension Plan and expected to be included in any such offering constitute, in Issuer's reasonable judgment, at least 25% of the shares of Class E Common Stock expected to be Transferred in such offering, the Pension Plan shall have the right to appoint one co-manager (reasonably acceptable to Issuer) for such offering, who shall participate in such offering on the same terms as the co-managers appointed by Issuer. In the event that Issuer gives the Pension Plan notice of its intention to effect an offering pursuant to a Piggyback Registration and subsequently declines to proceed with such offering, the Pension Plan shall have no rights in connection with such offering; provided, however, that, subject to Section 3(f), at the request of the Pension Plan, Issuer shall proceed with such offering with respect to the Registrable Securities, which offering shall be deemed to be a Demand Transfer for all purposes hereunder. The Pension Plan shall participate in any offering of Registrable Securities pursuant to a Piggyback Registration in accordance with the same plan of distribution for such Piggyback Registration as Issuer or the holder or holders of Class E Common Stock that proposed such Piggyback Registration, as the case may be. - 22 - 25 (d) Until the earlier of (i) the date on which the Pension Plan reduces its ownership of Registrable Securities to less than 100 million shares of Class E Common Stock and (ii) the seventh anniversary of the date of the initial Contribution pursuant to Section 1 (the "Piggyback Priority Date"), if there is a Share Limitation in connection with a Piggyback Registration, then Issuer shall include in such offering (i) first, the Class E Common Stock that Issuer proposes to Transfer, (ii) second, the Registrable Securities requested to be included in the offering by the Pension Plan, (iii) third, other shares of Class E Common Stock requested to be included therein pursuant to contractual rights of the holder or holders thereof (including the Strategic Partner, if any, and the holder or holders of Class E Common Stock that proposed such Piggyback Registration, if any) and (iv) fourth, any other shares of Class E Common Stock. (e) From and after the Piggyback Priority Date and until such time as the Pension Plan reduces its ownership of Registrable Securities to less than 25 million shares of Class E Common Stock (the "Priority Termination Date"), if there is a Share Limitation in connection with any Piggyback Registration, then Issuer shall include in such offering (i) first, the Class E Common Stock that Issuer proposes to Transfer, (ii) second, an equal number of Registrable Securities and shares of Class E Common Stock from each of the Pension Plan and the Strategic Partner, if any, respectively, until all of the shares requested to be included therein by either the Pension Plan or the Strategic Partner have been selected, (iii) third, any additional Registrable Securities and shares of Class E Common Stock requested to be included therein by the Pension Plan or the Strategic Partner, as the case may be, (iv) fourth, other shares of Class E Common Stock requested to be included therein pursuant to contractual rights of the holder or holders thereof (including the holder or holders of Class E Common Stock that proposed such Piggyback Registration, if any) and (v) fifth, any other shares of Class E Common Stock; provided, however, that if the Strategic Partner, if any, does not beneficially own at least 25 million shares of Class E Common Stock as of the time of such proposed offering, all shares of Registrable Securities requested by the Pension Plan to be included therein shall be so included before any shares of Class E Common Stock requested by the Strategic Partner to be included therein are so included. - 23 - 26 (f) From and after the Priority Termination Date, if there is a Share Limitation in connection with a Piggyback Registration, then Issuer shall include in such offering (i) first, the Class E Common Stock Issuer proposes to Transfer, (ii) second, the shares of Class E Common Stock requested by the Strategic Partner, if any, and the holder or holders of Class E Common Stock that proposed such Piggyback Registration, if any, to be included therein pursuant to contractual rights of the Strategic Partner and such holder or holders, as the case may be, (iii) third, the Registrable Securities requested to be included therein by the Pension Plan, (iv) fourth, other shares of Class E Common Stock requested to be included therein pursuant to contractual rights of the holder or holders thereof and (v) fifth, any other shares of Class E Common Stock. 5. Holdback Period. (a) The Pension Plan agrees not to make any Transfer of Registrable Securities during the period commencing with the effective date of a registration statement for any underwritten public offering of the Class E Common Stock (or any securities convertible into or exchangeable or exercisable for the Class E Common Stock) or, in the case of a Rule 415 registration statement, upon Issuer's notice of commencement of distribution in connection with such offering, and terminating on the 90th day after the effectiveness of the registration statement for such offering pursuant to the Securities Act or, in the case of a Rule 415 registration statement, the commencement of such offering, or, in either case, on such earlier date as Issuer gives notice to the Pension Plan that Issuer declines to proceed with such offering, unless the underwriter or underwriters administering such offering otherwise agree. (b) Issuer agrees not to make any Transfer of any Class E Common Stock (or any securities convertible into or exchangeable or exercisable for the Class E Common Stock) during the period commencing with the date of any notice of a proposed Public Transfer and terminating on the 90th day after the effectiveness of the registration statement for such Public Transfer pursuant to the Securities Act or, in the case of a Shelf Registration Statement, the commencement of distribution in connection with such Public Transfer, or, in either case, on such earlier date as the Pension Plan gives notice to Issuer that the Pension Plan declines to - 24 - 27 proceed with such Public Transfer, except (i) for the issuance of shares of Class E Common Stock upon the conversion, exercise or exchange, by the holder thereof, of options, warrants or other securities convertible into or exercisable or exchangeable for the Class E Common Stock pursuant to the terms of such options, warrants or other securities (which, in the case of any conversion, exercise or exchange which is at Issuer's option, Issuer shall not call for conversion, exercise or exchange during such period (it being understood that nothing herein shall limit the right of Issuer to call for redemption any security convertible, exercisable or exchangeable for Class E Common Stock or to issue shares of Class E Common Stock to the extent a holder of any such security elects to convert, exercise or exchange such security in lieu of accepting any redemption payments)), (ii) pursuant to the terms of any other agreement to issue shares of Class E Common Stock (or any securities convertible into or exchangeable or exercisable for the Class E Common Stock) in effect on the date of the notice of a proposed Transfer, including any such agreement in connection with any previously disclosed acquisition, merger, consolidation or other business combination, and (iii) in connection with Transfers to dividend reinvestment plans or to employee benefit plans in order to enable any such employee benefit plan to fulfill its funding obligations in the ordinary course, unless the underwriter or underwriters administering the offering in connection with such Public Transfer otherwise agree. Notwithstanding the foregoing, the provisions of this Section 5(b) shall be subject to the provisions of Section 3(f), and if Issuer exercises its rights of postponement pursuant to Section 3(f) with respect to any proposed Public Transfer, the provisions of this Section 5(b) shall not apply unless and until such time as Issuer notifies the Pension Plan of the termination of such postponement and the Pension Plan notifies Issuer of its intention to continue with such proposed Public Transfer. 6. Other Registration Rights. (a) Nothing herein shall restrict the authority of Issuer to grant to any Person, including a Strategic Partner, if any, the right to obtain registration under the Securities Act of any equity securities of Issuer, or any securities convertible into or exchangeable or exercisable for such securities; provided, however, that Issuer shall not grant any such right with respect to the Class E Common Stock or securities convertible into or - 25 - 28 exchangeable or exercisable for the Class E Common Stock that conflicts with the rights of the Pension Plan under Section 3(c), 4 or 6 in a manner that limits or reduces such rights. Without limiting the generality of the foregoing, Issuer shall cause each such Person, including a Strategic Partner, if any, and a holder or holders of Class E Common Stock with the right to propose a registration giving rise to a Piggyback Registration, if any, to agree to the provisions of Sections 3(c), 4 and 6(b) and to agree not to make any Transfer of any such securities during the period referred to in Section 5(b) to the extent such Transfer would be prohibited if made by Issuer. (b) If at any time a Strategic Partner has been designated by Issuer, the relative rights of the Pension Plan and the Strategic Partner shall be as follows: (i) If at any time the Strategic Partner, if any, elects to exercise any rights for a demand registration of shares of Class E Common Stock pursuant to an underwritten public offering (a "Strategic Partner Demand Registration"), Issuer shall give the Pension Plan written notice of such proposed Strategic Partner Demand Registration within five days of receipt of notice thereof from the Strategic Partner. (ii) Until the earlier of (A) the date on which the Pension Plan reduces its ownership of Registrable Securities to less than 100 million shares of Class E Common Stock and (B) the fifth anniversary of the date of the initial Contribution under Section 1 (the "Demand Priority Date"), if the Pension Plan requests (and does not withdraw its request for) a Public Transfer within 10 days of Issuer's notice of a proposed Strategic Partner Demand Registration, Issuer shall (subject to Section 3(f)) effect such Public Transfer as contemplated herein, and the proposed Strategic Partner Demand Registration shall not proceed. In such case, the Pension Plan shall proceed with such Public Transfer in good faith, taking into account market conditions, until such Public Transfer is consummated or abandoned by the Pension Plan. The Pension Plan shall give Issuer prompt written notice if it determines to abandon any such proposed Public Transfer. (iii) The Pension Plan may at any time elect to participate in any Strategic Partner Demand Registration by - 26 - 29 giving Issuer notice thereof within 10 days of Issuer's notice to the Pension Plan of such Strategic Partner Demand Registration. In such case, subject to Section 6(b)(iv), Issuer shall include in such registration the number of Registrable Securities requested by the Pension Plan to be included therein (which number shall be set forth in the Pension Plan's notice to Issuer of its election to participate therein). Any such registration shall be considered a Public Transfer and shall be deemed made on such date as such Registrable Securities are Transferred pursuant thereto. The Pension Plan shall participate in any offering of Class E Common Stock in connection with such registration in accordance with the same plan of distribution as the Strategic Partner. (iv) Until the Priority Termination Date, if there is a Share Limitation in connection with any Strategic Partner Demand Registration in which the Pension Plan has elected to participate, Issuer shall include in such registration (A) first, an equal number of Registrable Securities and shares of Class E Common Stock from each of the Pension Plan and the Strategic Partner, respectively, until all of the shares requested to be included therein by either the Pension Plan or the Strategic Partner have been selected, (B) second, any additional Registrable Securities and shares of Class E Common Stock requested to be included therein by the Pension Plan or the Strategic Partner, as the case may be, (C) third, other shares of Class E Common Stock requested to be included therein by the holder or holders thereof pursuant to contractual rights of such holder or holders and (D) fourth, any other shares of Class E Common Stock. From and after the Priority Termination Date, if there is a Share Limitation in connection with a Strategic Partner Demand Registration in which the Pension Plan has elected to participate, Issuer shall include in such registration (W) first, the shares of Class E Common Stock proposed to be registered by the Strategic Partner, (X) second, the shares of Registrable Securities requested to be included therein by the Pension Plan, (Y) third, other shares of Class E Common Stock requested to be included therein by the holder or holders thereof pursuant to contractual rights of such holder or holders and (Z) fourth, any other shares of Class E Common Stock. - 27 - 30 (v) The Strategic Partner, if any, may at any time elect to participate in any Public Transfer requested by the Pension Plan by giving Issuer notice thereof within 15 days of the Pension Plan's notice to Issuer of such Public Transfer. In such case, subject to Section 6(b)(vi), Issuer may include in the registration in connection with such Public Transfer the number of shares of Class E Common Stock requested by the Strategic Partner to be included therein. The Strategic Partner shall participate in any offering of Class E Common Stock in connection with such Public Transfer in accordance with the same plan of distribution for such Public Transfer as the Pension Plan. (vi) Until the Demand Priority Date, if there is a Share Limitation in connection with any Public Transfer requested by the Pension Plan in which the Strategic Partner has elected to participate, Issuer shall include in such registration (A) first, the Registrable Securities requested to be included therein by the Pension Plan, (B) second, shares of Class E Common Stock requested to be included therein by the Strategic Partner, (C) third, other shares of Class E Common Stock requested to be included therein pursuant to contractual rights of the holder or holders thereof and (D) fourth, any other shares of Class E Common Stock. From and after the Demand Priority Date and until the Priority Termination Date, if there is a Share Limitation in connection with a Public Transfer requested by the Pension Plan in which the Strategic Partner has elected to participate, Issuer shall include in the registration in connection with such Public Transfer (A) first, an equal number of Registrable Securities and shares of Class E Common Stock from each of the Pension Plan and the Strategic Partner, respectively, until all of the shares requested to be included therein by either the Pension Plan or the Strategic Partner have been selected, (B) second, any additional Registrable Securities and shares of Class E Common Stock requested to be included therein by the Pension Plan or the Strategic Partner, as the case may be, (C) third, other shares of Class E Common Stock requested to be included therein by the holder or holders thereof pursuant to contractual rights of such holder or holders and (D) fourth, any other shares of Class E Common Stock; provided, however, that if the Strategic Partner does not beneficially own at least 25 million shares of Class E Common Stock as of the time - 28 - 31 of such registration, all shares of Registrable Securities requested by the Pension Plan to be included therein shall be so included before any shares of Class E Common Stock requested by the Strategic Partner to be included therein are so included. From and after the Priority Termination Date, if there is a Share Limitation in connection with a Public Transfer requested by the Pension Plan in which the Strategic Partner has elected to participate, Issuer shall include in the registration in connection with such Public Transfer (X) first, the Registrable Securities proposed to be registered by the Pension Plan, (Y) second, the shares of Class E Common Stock requested to be included therein by the holder or holders thereof (including the shares of Class E Common Stock requested to be included therein by the Strategic Partner, if any), pursuant to contractual rights of such holder or holders and (Z) third, any other shares of Class E Common Stock. (vii) Nothing herein shall obligate Issuer to grant to any Person, including a Strategic Partner, if any, the right to obtain registration under the Securities Act of any equity securities of Issuer, or any securities convertible into or exercisable or exchangeable for such securities. If and to the extent Issuer grants any such rights to any Person, the terms thereof shall be as set forth in the related agreement between such Person and Issuer and may include restrictions on and obligations of such Person greater than or in addition to those contemplated herein, subject to Section 6(a). (c) The Pension Plan acknowledges and accepts the rights of the Salaried Plan under the Exchange Agreement and that the Salaried Plan has not agreed to the provisions of Sections 3(c), 4 or 6(b) hereof. The Pension Plan and Issuer also acknowledge the arrangements set forth in the Agreement dated as of the date hereof among Issuer, the Salaried Plan and the Hourly Plan with respect to certain registration rights matters. Without limiting the generality of the foregoing and notwithstanding anything to the contrary herein (including Section 3(c)): (i) in the event of a Piggyback Registration requested by the Salaried Plan pursuant to its rights under the Exchange Agreement, if there is a Share Limitation, Issuer shall include in the related offering all shares of Class E Common Stock requested to be included therein by the Salaried Plan before including any shares of Registrable Securities - 29 - 32 requested to be included therein by the Pension Plan, (ii) the events giving rise to Issuer's right to postpone under Section 3(f) shall include performing its obligations under the Exchange Agreement in connection with the offering and sale of shares of Class E Common Stock by the Salaried Plan, regardless of when the notice requesting the related registration is received by Issuer, and (iii) in no event shall Issuer be deemed to be in breach of this Agreement (including Section 3(c)) as a result of performing its obligations under the Exchange Agreement. 7. Demand, Piggyback and Shelf Registration Procedures. Whenever Registrable Securities are to be registered pursuant to this Agreement, Issuer shall, to the extent applicable for each type of registration statement: (a) subject to Sections 3(f) and 12(a), prepare and file with the Commission a registration statement with respect to such Registrable Securities and use reasonable efforts to cause such registration statement to be declared effective as promptly after the initial filing thereof as reasonably practicable; (b) furnish to any investment manager acting on behalf of the Pension Plan with respect to the Registrable Securities and to one law firm representing each such investment manager, copies of such registration statement, the prospectus contained therein and any amendments or supplements thereto prior to filing such documents with the Commission, but only to the extent such documents contain information regarding such investment manager, with such documentation, and any other documentation provided by this Agreement to be delivered to the investment manager acting on behalf of the Pension Plan and counsel to the Pension Plan, to be delivered as provided in Section 12(d) unless otherwise directed by the Named Fiduciary or its delegate; (c) subject to Sections 3(f) and 12(a), prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than nine months (or such shorter period as may be necessary to effect the Transfer of all shares of Registrable Securities covered by such registration statement as described therein); - 30 - 33 (d) furnish to the Pension Plan and the underwriters such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as the Pension Plan and its counsel may reasonably request in order to facilitate the disposition of the Registrable Securities; (e) so long as Class E Common Stock is listed on any United States securities exchange or a quotation system, use its best efforts to cause all of the Registrable Securities to be listed on such exchange or a quotation system; (f) use its best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Pension Plan reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Pension Plan to consummate the disposition in such jurisdictions of the Registrable Securities (provided that Issuer will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction); (g) notify the Pension Plan, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, at the request of the Pension Plan, Issuer will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; (h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Pension Plan or the underwriters, if any, reasonably - 31 - 34 request in order to expedite or facilitate the disposition of the Registrable Securities; and (i) make available (and cause all the officers, directors, employees and independent accountants of Issuer and its subsidiaries to make available), to the extent reasonably requested by the Pension Plan or any underwriter, attorney, accountant or agent retained by the Pension Plan in connection with such registration statement, all financial and other records and pertinent corporate documents and properties of Issuer and its subsidiaries for inspection by the Pension Plan or any underwriter, attorney, accountant or other agent retained by the Pension Plan in connection with such registration. Each of the parties will treat all notices of proposed Transfers and registrations, all notices pursuant to Section 7(g) and all information relating to any Blackout Periods under Section 3(f) received from the other party with the strictest confidence and will not disseminate such information. Subject to Section 3(c), nothing herein shall be construed to require Issuer or any of its affiliates to make any public disclosure of information at any time. In the event Issuer has notified the Pension Plan that (i) the prospectus included in a registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, (ii) the Commission has issued or threatened to issue any stop order suspending the effectiveness of a registration statement or has initiated proceedings for such purpose or (iii) Issuer has received any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, then the Pension Plan shall not deliver such prospectus to any purchaser unless and until a supplement or amendment to such prospectus has been prepared as set forth in Section 7(g) or until Issuer advises the Pension Plan in writing that the use of such prospectus may be resumed. The Pension Plan shall cooperate with Issuer in the preparation and filing of any registration statement under the Securities Act pursuant to this Agreement and provide Issuer with all information necessary to complete such preparation within a reasonable period of time prior to the proposed filing of such registration statement, and in the case of any Demand Registration - 32 - 35 Statement or Shelf Registration Statement to be filed pursuant to Section 3(c), within such period as is necessary to enable Issuer to file such registration statement within 30 days of the Pension Plan's request therefor. From and after such time as the Pension Plan reduces its ownership of the Registrable Securities to less than 50 million shares of Class E Common Stock, Issuer shall file the reports required to be filed by it under Section 13 of the Exchange Act or any successor thereto (or, if Issuer is not required to file such reports, make publicly available such information upon the request of Pension Plan), and take such further action as the Pension Plan may reasonably request, all to the extent required to enable the Pension Plan to Transfer the Registrable Securities pursuant to Rule 144. 8. Participation in Underwritten Transfers. The Pension Plan may not participate in any underwritten Transfers hereunder unless the Pension Plan (a) agrees to sell the Pension Plan's securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, custodian agreements and other documents required under the terms of such underwriting arrangements. 9. Registration Expenses and Legal Counsel. Issuer shall be responsible for all federal and state filing fees (including all blue sky registration or qualification fees), all fees and expenses of its counsel and all independent certified public accountants, underwriters (excluding discounts and commissions and fees and expenses of counsel to the underwriters) and other Persons retained by Issuer and all other costs or expenses incurred by Issuer in the performance of its obligations hereunder and the reasonable fees and expenses of one outside law firm representing the Pension Plan and other out-of-pocket expenses of the Pension Plan in connection with any registration statement under the Securities Act pursuant to this Agreement or any amendment thereto; provided, however, that the selection of the law firm representing the Pension Plan shall be subject to the consent of Issuer, which consent shall not be unreasonably withheld. Issuer shall have the right to select the financial printer to be used in connection with - 33 - 36 any registration of Registrable Securities under the Securities Act pursuant to this Agreement. 10. Indemnification. (a) Issuer agrees to indemnify and hold harmless each of the Pension Plan, the Trustee and any successor thereto, the investment manager or managers acting on behalf of the Pension Plan with respect to the Registrable Securities and Persons, if any, who control any of them within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each an "Indemnitee"), from and against any and all costs and expenses reasonably incurred and losses, damages and other liabilities sustained by such Indemnitee and arising out of or caused by any untrue statement or alleged untrue statement of a material fact contained in any registration statement described herein or any related prospectus relating to the Registrable Securities (as amended or supplemented if Issuer shall have furnished any amendments or supplements thereto), or arising out of or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, except insofar as such costs, expenses, losses, damages or other liabilities arising out of or are caused by any such untrue statement or omission included or omitted in conformity with information furnished to Issuer in writing by such Indemnitee or any Person acting on behalf of such Indemnitee expressly for use therein; provided, however, the foregoing indemnity agreement with respect to any preliminary prospectuses shall not inure to the benefit of such Indemnitee, if the Person asserting any claims, losses, damages or other liabilities against such Indemnitee purchased Registrable Securities and a copy of the prospectus (as then amended or supplemented if Issuer shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Indemnitee to such Person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Registrable Securities to such Person, and if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such asserted claim, loss, damage or other liability; provided, further, that the foregoing proviso shall not apply in the case of a Piggy-back Registration if the Indemnitee is the Pension Plan or Trustee. - 34 - 37 (b) The Pension Plan agrees, to the extent permitted under applicable law, and each underwriter selected shall agree, to indemnify and hold harmless each of Issuer, its directors, officers, employees and agents, and each person, if any, who controls Issuer within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from Issuer, but only with respect to costs, expenses, losses, damages or other liabilities arising out of or caused by an untrue statement or omission included or omitted in conformity with information furnished in writing by or on behalf of the Pension Plan or such underwriter, as the case may be, expressly for use in any registration statement described herein or any related prospectus relating to the Registrable Securities (as amended or supplemented if Issuer shall have furnished or any amendments or supplements thereto). No claim against the assets of the Pension Plan shall be created by this Section 10(b), except as and to the extent permitted by applicable law. (c) In case any claim is asserted or any proceeding (including any governmental investigation) shall be instituted where indemnity may be sought by an Indemnitee pursuant to any of the preceding paragraphs of this Section 10, such Indemnitee shall promptly notify in writing the Person against whom such indemnity may be sought (the "Indemnitor"); provided, however, that the omission so to notify the Indemnitor shall not relieve the Indemnitor of any liability which it may have to such Indemnitee except to the extent that the Indemnitor was prejudiced by such failure to notify. The Indemnitor, upon request of the Indemnitee, shall retain counsel reasonably satisfactory to the Indemnitee to represent (subject to the following sentences of this section) the Indemnitee and any others the Indemnitor may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnitee shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (i) the Indemnitor and the Indemnitee shall have mutually agreed to the retention of such counsel, (ii) the Indemnitor fails to take reasonable steps necessary to defend diligently any claim within ten calendar days after receiving written notice from the Indemnitee that the Indemnitee believes the Indemnitor has failed to take such steps, or (iii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnitor and the Indemnitee and representation of both parties by the - 35 - 38 same counsel would be inappropriate due to actual or potential differing interests or legal defenses between them and, in all such cases, the Indemnitor shall only be responsible for the reasonable fees and expenses of such counsel. It is understood that the Indemnitor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate law firm (in addition to any local counsel) for all such Indemnitees not having actual or potential differing interests or legal defenses among them, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Pension Plan or any control Person of the Pension Plan, such firm shall be designated in writing by the Named Fiduciary. The Indemnitor shall not be liable for any settlement of any proceeding effected without its written consent. (d) If the indemnification provided for in this Section 10 is unavailable to an Indemnitee in respect of any costs, expenses, losses, damages or other liabilities referred to herein, then the Indemnitor, in lieu of indemnifying such Indemnitee hereunder, shall contribute to the amount paid or payable by such Indemnitee as a result of such costs, expenses, losses, damages or other liabilities in such proportion as is appropriate to reflect the relative fault of the Indemnitor and the Indemnitee and Persons acting on behalf of or controlling the Indemnitee in connection with the statements or omissions or violations which resulted in such costs, expenses, losses, damages or other liabilities, as well as any other relevant equitable considerations. If the indemnification described in Section 10(a) or 10(b) is unavailable to an Indemnitee, the relative fault of Issuer, the Pension Plan and Persons acting on behalf of or controlling the Pension Plan shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by Issuer or by Persons acting on behalf of the Pension Plan and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Indemnitor shall not be required to contribute pursuant to this Section 10(d) if there has been a settlement of any proceeding effected without its written consent. No claim against the assets of the Pension Plan shall be created by this Section 10(d), except as and to the extent permitted by applicable law. - 36 - 39 (e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding section. Notwithstanding the provisions of this Section 10, the aggregate contribution of the Pension Plan under this Section 10 will not exceed the proceeds received by the Pension Plan from the Registrable Securities sold by it and the Pension Plan shall not be required to contribute under this Section 10 in respect of any costs, expenses, losses, damages or other liabilities unless the same arise with reference to any information furnished to Issuer in writing by Persons acting on behalf of the Pension Plan expressly for use in any registration Statement pursuant to this Agreement or the prospectus or any amendment or supplement thereto. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (f) The indemnification and contribution agreements contained in this Section 10 and the representations and warranties of Issuer contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement and (ii) acceptance of and the payment by the buyer for any Registrable Securities. 11. Definitions. "Blackout Period" means (i) any period of time during which a requested Demand Transfer has been postponed pursuant to Section 3(f), which period shall continue until notice of the termination of such postponement has been delivered to the Pension Plan, and (ii) any holdback period during which Transfers were not permitted by operation of Section 5(a), unless in any offering referred to in Section 5(a), the Pension Plan Transferred or had the opportunity to Transfer shares of Registrable Securities that constituted the lesser of (a) the number of shares of Class E Common Stock that the Pension Plan requested to be included in such offering or (b) 25 million shares. "Class E Common Stock" means Class E Common Stock, par value $0.10 per share, of General Motors and any securities issued or issuable with respect to the Class E Common Stock in connection - 37 - 40 with any stock dividend, stock split (forward or reverse), combination of shares, recapitalization, merger, consolidation, redemption, exchange of securities or other reorganization or reclassification after the date hereof. In the event of any of the foregoing with respect to the Class E Common Stock or similar transactions affecting the Class E Common Stock, all references herein to the designation "Class E Common Stock" and to any specific number of shares of Class E Common Stock shall be appropriately adjusted to give effect thereto, and shall include reference to all securities of the same class regardless of whether any such securities were issued or issuable with respect to the securities that previously constituted the Class E Common Stock. "Commission" means the United States Securities and Exchange Commission. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder. "General Motors" means General Motors Corporation, a Delaware corporation. "Issuer" means, initially, General Motors, and thereafter, each successor issuer as described in Section 12(a). "Liquidity Event" means that either (a) the Pension Plan has Transferred an aggregate of at least 25 million shares of Registrable Securities or (b) the Pension Plan has been given an opportunity to include at least 25 million shares of Registrable Securities in a Piggyback Registration or a Strategic Partner Demand Registration and has declined to do so. "Minimum Tender Condition" means, with respect to any tender offer, that there have been validly tendered and not withdrawn pursuant to such tender offer a number of shares of Class E Common Stock which, when taken together with the number of shares of Class E Common Stock that the Bidder making such tender offer otherwise beneficially owns as of immediately after the acceptance for purchase and purchase of such tendered shares, represent more than 50% of the voting power of all securities of Issuer outstanding as of such expiration date and generally entitled to vote in the election of directors. - 38 - 41 "Person" means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof. "Registrable Securities" means (i) the Class E Common Stock contributed pursuant to this Agreement from time to time, (ii) the Class E Common Stock held by the Pension Plan as of the date hereof which are subject to the Exchange Agreement and (iii) the securities issued or issuable with respect to the securities referred to in clauses (i) and (ii) in connection with any stock dividend, stock split (forward or reverse), combination of shares, recapitalization, merger, consolidation, redemption, exchange of securities or other reorganization or reclassification after the date hereof. In the event of any of the foregoing with respect to the Registrable Securities or similar transactions affecting the Registrable Securities, all references herein to any designation of securities and to any specific number of shares or Registrable Securities shall be appropriately adjusted to give effect thereto. As to any particular Registrable Securities, such securities will cease to be Registrable Securities when they have been Transferred by the Pension Plan in accordance with all applicable provisions of this Agreement. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations thereunder. "Share Limitation" means that the lead underwriter or co-managers of any offering in connection with a Piggyback Registration, a Demand Registration or a Strategic Partner Demand Registration advise Issuer in writing that in their opinion the number of Registrable Securities requested to be included in such offering exceeds, together with other shares of Class E Common Stock to be included therein, the number of shares of Class E Common Stock which can be sold in such offering without adversely affecting the marketability of the offering. "Strategic Partner" means any Person (or group of Persons acting in concert with respect to an investment in Issuer) who (i) in a single transaction or series of related transactions entered into as part of a single business venture (the "Strategic Partner Transactions") acquires or commits to acquire shares of Class E Common Stock (or securities convertible into or exchangeable or - 39 - 42 exercisable for the Class E Common Stock) that constitute not less than 10% of the Class E Common Stock then outstanding (determined after giving effect to such commitment (and assuming that all such shares or securities subject to such commitment are acquired) or acquisition and the conversion, exchange or exercise of all such securities subject to such commitment or so acquired) and (ii) is designated as such by the Board of Directors of Issuer. Issuer shall give the Pension Plan prompt notice of any such acquisition, commitment and designation, of the nature and proposed timetable for any acquisitions and of the nature of any rights granted to the Person so designated to register under the Securities Act shares of the Class E Common Stock. If more than one Person is designated the Strategic Partner as described above, all rights of the Strategic Partner herein shall be shared among such Persons as such Persons and Issuer may agree. Issuer may designate only one Person (or group of Persons as described above) as the Strategic Partner hereunder. All references herein to the shares of Class E Common Stock beneficially owned by the Strategic Partner shall include all shares of Class E Common Stock (or securities convertible into or exchangeable or exercisable for the Class E Common Stock) acquired by the Strategic Partner pursuant to the Strategic Partner Transactions and all additional shares of Class E Common Stock (or securities convertible into or exchangeable or exercisable for the Class E Common Stock) that the Strategic Partner has a right, commitment or obligation to acquire pursuant to the Strategic Partner Transactions. "Transfer" means any sale, transfer or other disposition (including any pledge and any disposition upon the foreclosure of any pledge or any agreement to do any of the foregoing). 12. Miscellaneous. (a) Succession. In the event that the Registrable Securities are to be converted or exchanged into (or become the right to receive) securities of any issuer other than the Person who is then Issuer hereunder in connection with any transaction to which such Issuer is a party, such Issuer shall cause the issuer of such securities to agree, effective as of such conversion or exchange, that all rights, obligations and restrictions of Issuer set forth in this Agreement, except for the rights, obligations and restrictions set forth in subsections (a) through (e) of Section 1 (which shall only be obligations of General Motors), shall continue - 40 - 43 to apply to such securities. As of the time of such conversion or exchange, subject to the exception set forth in the preceding sentence, such issuer shall be bound by this Agreement and shall succeed to all rights, restrictions and obligations of Issuer set forth in this Agreement, all references to Issuer herein shall thereafter be deemed to be references to such issuer, and the predecessor Issuer shall be released from all obligations under this Agree-ment (except with respect to any obligations under Section 10 with respect to any registration of securities issued by such Issuer). To evidence the foregoing, prior to the time of such conversion or exchange, Issuer may execute, and cause such issuer to execute, a Succession Agreement substantially in the form of Exhibit C attached hereto. Upon request, the Pension Plan shall acknowledge and agree to any such Succession Agreement as set forth therein. To the extent required and permissible under applicable law, as soon as reasonably practicable after such conversion or exchange, such issuer shall file with the Commission an amendment to the Shelf Registration Statement, if any, then in effect to ensure that such Shelf Registration shall continue to apply to such securities. In the event such issuer is not eligible to register such securities on Form S-3, all references to Form S-3 herein shall thereafter be deemed to be references to Form S-1 or any other available form, except that such issuer shall have no obligations hereunder to file a Shelf Registration Statement (and shall have no obligation with respect to any Shelf Registration Statement that is then in effect) unless and until such time as such issuer becomes eligible to register such securities on Form S-3 or any successor short form registration statement. (b) Termination. All rights, restrictions and obligations of Issuer and the Pension Plan, except with respect to any rights and obligations under Section 10, shall terminate and this Agreement shall have no further force and effect at such time as the Pension Plan reduces its ownership of the Registrable Securities to less than 2% of the aggregate number of shares of Class E Common Stock then outstanding. (c) Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may not be amended, modified or supplemented except by a writing signed by Issuer and the Pension Plan. - 41 - 44 (d) Notices. Except where notice by teleconference is specifically called for in this Agreement, all notices and other communications provided for or permitted hereunder shall be in writing and, except as specified herein, shall be made by hand delivery, by registered or certified first-class mail, return receipt requested, overnight courier or facsimile transmission: (i) If to the Pension Plan: United States Trust Company of New York 114 West 47th Street New York, New York 10036 Attention: Senior Vice President and General Counsel Telephone: (212) 852-1302 Facsimile: (212) 852-1310 with copies to: General Motors Investment Management Corporation 767 Fifth Avenue New York, New York 10153 Attention: Vice President, Portfolio Strategy and Manager Relations Telephone: (212) 418-3590 Facsimile: (212) 418-6339 (ii) If to Issuer: General Motors Corporation 767 Fifth Avenue New York, New York 10153 Attention: Treasurer Telephone: (212) 418-3500 Facsimile: (212) 418-3695 - 42 - 45 with copies to: General Motors Corporation Legal Staff 3031 West Grand Boulevard Detroit, Michigan 48202 Attention: Warren G. Andersen, Esq. Telephone: (313) 974-1528 Facsimile: (313) 974-0685 All notices and communications shall be deemed to have been duly given and received: when received telephonically, if notice by teleconference is specifically called for by this Agreement; when delivered by hand, if hand delivered; the fifth Business Day after being deposited in the mail, registered or certified, return receipt requested, first class postage prepaid, or earlier Business Day actually received, if mailed; the first Business Day after being deposited with an overnight courier, postage prepaid, if by overnight courier; upon oral confirmation of receipt, if by facsimile transmission. Each party agrees promptly to confirm receipt of all notices. Whenever notices are required to be given by Issuer, such notices may only be given by the Treasurer of Issuer or another officer or employee of Issuer designated by the Treasurer in advance in writing to the recipient of such notice. Whenever notices are required to be given by any investment manager (including the Trustee) with respect to the Registrable Securities, such notices may only be given by an officer or employee of such investment manager designated in advance in writing to the recipient of such notice. (e) No Third Party Beneficiaries. This Agreement shall be for the sole and exclusive benefit of Issuer, the Pension Plan, the Trustee and any other investment manager or managers acting on behalf of the Pension Plan with respect to the Registrable Securities, and their respective successors, and directors, trustees, officers, employees, agents and controlling Persons indemnified hereunder. Nothing in this Agreement shall be construed to give any other Person any legal or equitable right, remedy or claim under this Agreement. - 43 - 46 (f) Descriptive Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not constitute a part hereof. (g) Cooperation. Each party hereto shall take such further action, and execute such additional documents, as may be reasonably requested by any other party hereto in order to carry out the purposes of this Agreement. (h) Binding Effect; Assignment. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by each of the parties and their successors and the directors, trustees (including, without limitation, any successor trustee for the Pension Plan), officers, employees, agents and controlling Persons of the parties. Except for an assignment to a successor trustee or to an investment manager as stated herein, and except as contemplated in Section 12(a), none of the rights or obligations under this Agreement shall be assigned by the Pension Plan without the consent of Issuer or by Issuer without the consent of the Pension Plan. (i) Counterparts. This Agreement may be executed in counterparts, and shall be deemed to have been duly executed and delivered by all parties when each party has executed a counterpart hereof and delivered an original or facsimile copy thereof to the other party. Each such counterpart hereof shall be deemed to be an original, and all of such counterparts together shall constitute one and the same instrument. (j) Governing Law. All questions concerning the construction, validity and interpretation of this Agreement shall be governed by the internal laws (and not the laws of conflict) of the State of Delaware, except to the extent that the laws of the state or jurisdiction of incorporation or organization of the issuer of the Registrable Securities from time to time specifically apply to questions concerning the relative rights of the issuer of the Registrable Securities and the stockholders of such issuer in their capacities as such. (k) Acknowledgments. The Pension Plan agrees that it will obtain written acknowledgments, and provide a copy of such acknowledgments to Issuer, from each of its investment managers with respect to the Registrable Securities (other than the Trustee) - 44 - 47 and from the Trustee's valuation adviser, confirming that such entity has received and reviewed this Agreement and will comply with the terms of this Agreement applicable to it. Issuer and the Pension Plan acknowledge and agree that, as of the date hereof and pursuant to this Section 12(k), the Exchange Agreement is terminated with respect to the Pension Plan and is of no further force and effect with respect to the Class E Common Stock acquired by the Pension Plan pursuant thereto, and the Pension Plan shall have no further rights, and Issuer shall have no further obligations to the Pension Plan, thereunder or with respect to the Class E Common Stock acquired by the Pension Plan pursuant thereto, and the Pension Plan hereby waives any rights it may have had thereunder. * * * * - 45 - 48 IN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Registration Agreement on the date first above written. GENERAL MOTORS CORPORATION By: /s/ Heidi Kunz Name: Heidi Kunz Title: Vice President and Treasurer GENERAL MOTORS HOURLY-RATE EMPLOYEES PENSION PLAN By: UNITED STATES TRUST COMPANY OF NEW YORK, As Trustee By: /s/ Norman P. Goldberg Name: Norman P. Goldberg Title: Authorized Agent - 46 - 49 EXHIBIT A TRANSFER AGREEMENT This Agreement is entered into on March 12, 1995, by and between General Motors Corporation, a Delaware corporation ("General Motors"), and United States Trust Company of New York (the "Trustee") as trustee of a trust established under the General Motors Hourly-Rate Employees Pension Plan (the "Pension Plan"), for the account and on behalf of the Pension Plan (which shall thereby be deemed a party to this Agreement). Capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in Section 5. WHEREAS, General Motors intends, subject to the satisfaction of certain regulatory and other conditions, to contribute approximately 177,000,000 shares of Class E Common Stock to the Pension Plan, pursuant to the terms of a Registration Rights Agreement, dated as of the date hereof (the "Registration Rights Agreement"), by and between General Motors and the Pension Plan; and WHEREAS, the Pension Plan is the owner of other shares of Class E Common Stock that are subject to the Registration Rights Agreement; and WHEREAS, General Motors wishes to preserve its ability to consummate at a later date a tax-free reorganization (or series of reorganizations) under the Internal Revenue Code of 1986, as amended, and the rules, regulations and rulings thereunder (the "Code"), including, without limitation, a split-off pursuant to which the outstanding shares of Class E Common Stock and, in the discretion of General Motors, Series C Preference Stock will be converted into or exchanged for, among other things, shares of capital stock of Electronic Data Systems Corporation, a Texas corporation ("Texas EDS") (or a subsidiary of Texas EDS or any other subsidiary of General Motors owning an interest in Texas EDS) (Texas EDS and any such subsidiary being collectively referred to 50 herein as "EDS") such that EDS is no longer controlled by General Motors (any such transaction or series of transactions being referred to herein as a "Split-Off"), and to preserve the tax-free status of a Split-Off in the event that EDS enters into a business combination with one or more other corporations or other business entities (a "Merger") within two years of such time as a Split-Off is effected, which objective makes it desirable that certain restrictions be imposed on the Pension Plan's ability to Transfer the Transferable Securities; and WHEREAS, the Pension Plan is prepared to accept the shares of Class E Common Stock that may be contributed to it as described in the Registration Rights Agreement and to hold and Transfer any such shares and other shares of Class E Common Stock owned by it on the terms and conditions stated herein; and WHEREAS, the Trustee has been appointed by the named fiduciary of the Pension Plan (the "Named Fiduciary") (as determined in accordance with Section 402(a) of the Employee Retirement Income Security Act of 1974, as amended), to manage any shares of Class E Common Stock held by the Pension Plan as described in the Registration Rights Agreement and this Agreement and to exercise all rights, powers and privileges appurtenant to such shares (subject to the authority of the Named Fiduciary to terminate such appointment and appoint one or more other investment managers for any such shares); and WHEREAS, the Trustee has full power and authority to execute and deliver this Agreement for the account and on behalf of the Pension Plan and to so bind the Pension Plan; NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, General Motors and the Pension Plan hereby agree as follows: 1. Restrictions on Transfer. (a) (i) From and after such date as the first shares of Class E Common Stock are contributed to the Pension Plan - 2 - 51 pursuant to the Registration Rights Agreement (the "Initial Contribution Date"), the Pension Plan shall not make any Transfer of the Transferable Securities to any Person if, to the knowledge of the Pension Plan after reasonable inquiry, such Person is a Foreign Person and, as a result of such Transfer, such Person would own (directly or through the attribution rules contained in the regulations under Section 367(e) of the Code) shares of Class E Common Stock that would constitute more than 5% of the total value of the Class E Common Stock then outstanding. The foregoing restriction shall terminate at such time as a Split-Off is effected (the "Split-Off Date"). (ii) From and after the Initial Contribution Date, the Pension Plan shall not make any Transfer of the Transferable Securities to (A) any Person (or group of related Persons acting pursuant to a plan or arrangement) (whether such Person (or group of related Persons acting pursuant to a plan or arrangement) is buying for its own account or as a fiduciary on behalf of one or more accounts), if such Transferable Securities constitute more than 2% of the Class E Common Stock then outstanding or (B) any Person (or group of related Persons acting pursuant to a plan or arrangement) if such Person (or group of related Persons acting pursuant to a plan or arrangement) is then, or as a result of such Transfer will become, to the knowledge of the Pension Plan after reasonable inquiry, a 5% Person. The foregoing restrictions shall terminate on the first anniversary of the Split-Off Date. (b) From and after the Initial Contribution Date, the Pension Plan shall not make any Transfer of the Transferable Securities to any Person (or group of related Persons acting pursuant to a plan or arrangement) if, as a result of such Transfer and related transactions, to the knowledge of the Pension Plan after reasonable inquiry, such Person (or group of related Persons acting pursuant to a plan or arrangement) would have acquired shares of Class E Common Stock that (when aggregated with all other shares of Class E Common Stock so acquired at any time by such Person (or group of related Persons acting pursuant to a plan or arrangement)) would constitute 40% or more of the total number of - 3 - 52 shares of Class E Common Stock then outstanding (computed for this purpose as if any option, warrant or other security that permits such Person (or group of related Persons acting pursuant to a plan or arrangement) to acquire additional shares of Class E Common Stock (or any securities convertible into or exchangeable or exercisable for the Class E Common Stock) had been fully exercised, converted or exchanged). The foregoing restriction shall terminate 185 days after the Split-Off Date. (c) From and after any such time as the Pension Plan receives notice from General Motors or otherwise becomes aware by public announcement that General Motors intends to effect a Split-Off (the "Split-Off Notice Date"), the Pension Plan shall not make any Transfer of the Transferable Securities if, after giving effect to such Transfer, the number of shares of Transferable Securities that would be owned directly by the Pension Plan (which shall include all shares in which the Pension Plan has a beneficial interest (whether or not registered in the name of the Pension Plan) and which shall not include shares owned by any Affiliate of the Pension Plan) would constitute less than 50% of the number of Transferable Securities owned directly by the Pension Plan as of the Split-Off Notice Date; provided that if there has been at any time from and after the Split-Off Notice Date, to the knowledge of the Pension Plan after reasonable inquiry, any 5% Person, then the Pension Plan may Transfer shares of Transferable Securities only if and to the extent that the number of Transferable Securities that would be owned directly by the Pension Plan immediately after such proposed Transfer would exceed 50% of the sum of (i) the number of shares of Class E Common Stock owned directly by the Pension Plan as of the Split-Off Notice Date and (ii) the maximum number of shares of Class E Common Stock directly or indirectly beneficially owned (as defined in Rule 13d-3 of the Exchange Act or any successor thereto ("Rule 13d-3")) at any time since the Split-Off Notice Date, to the knowledge of the Pension Plan after reasonable inquiry, by such 5% Person and by each other 5% Person (reduced so as not to double count any shares Transferred by one 5% Person to any other 5% Person). The restrictions set forth in this Section 1(c) shall terminate (i) in the event any such Split-Off is abandoned, on such date as the Pension Plan receives notice from General Motors or otherwise becomes aware of such abandonment (subject to such restrictions again becoming applicable as - 4 - 53 described in the first sentence of this Section 1(c)) or (ii) in the event any such Split-Off is effected, on the second anniversary of the Split-Off Date, provided that, if any agreement or letter of intent or other announcement of an intention to effect a Merger is entered into or made prior to the second anniversary of the Split-Off Date (a "Merger Event"), such restrictions shall terminate (A) except as provided in clause (B) below, on the second anniversary of such time as such Merger is consummated (such time being referred to as the "Merger Date"), (B) in the event such Merger constitutes a fully taxable exchange under Section 1001 of the Code, in which such Section applies to consideration received pursuant to such Merger by all shareholders of the Person who is then the issuer of the Transferable Securities and so long as the Pension Plan (and the Trustee) complied fully with the provisions of Section 1(h) with respect to such Merger, on the Merger Date, or (C) in the event such Merger is abandoned, on the later of (Y) the second anniversary of the Split-Off Date (subject to the occurrence of another Merger Event after such abandonment and prior to such second anniversary) and (Z) such date as the Pension Plan receives notice from General Motors or otherwise becomes aware of such abandonment. (d) Sections 1(a), 1(b) and 1(f) shall not apply to any Transfer of Transferable Securities by the Pension Plan if such Transfer is pursuant to an underwritten public offering reasonably designed to achieve a broad public distribution of the securities being offered; provided, that the Pension Plan shall have caused the lead underwriter and any co-manager of such offering to have agreed (and the Pension Plan shall have delivered evidence of such agreement to General Motors prior to the proposed commencement of such offering) to use its reasonable best efforts (i) to effect a broad public distribution of such securities and (ii) not to make any Transfer to any one Person (or group of related Persons acting pursuant to a plan or arrangement) (whether such Person (or group of related Persons acting pursuant to a plan or arrangement) is buying for its own account or as a fiduciary on behalf of one or more accounts) if (A) such Transfer is of Transferable Securities constituting more than 2% of the Class E Common Stock then outstanding or (B) such Person (or group of related Persons acting pursuant to a plan or arrangement) is a 5% Person, or, at any time prior to the time of such Transfer, has been designated in a - 5 - 54 written list provided by General Motors to the Pension Plan as, to the reasonable belief of General Motors, beneficially owning (as defined in Rule 13d-3) 2% or more of the total voting power or total value of the Class E Common Stock then outstanding. (e) Nothing in this Agreement shall prohibit the Pension Plan from making any Transfer of Transferable Securities if and to the extent such Transfer is made pursuant to a Split-Off or a Merger; provided that this Agreement shall continue to apply to any Transferable Securities received by the Pension Plan pursuant to such Split-Off or Merger, as the case may be, as provided in this Agreement. (f) From and after the Initial Contribution Date, the Pension Plan shall not make any Transfer of the Transferable Securities to any Person (or group of related Persons acting pursuant to a plan or arrangement) if, to the knowledge of the Pension Plan after reasonable inquiry, as a result of such Transfer, such Person (or group of related Persons acting pursuant to a plan or arrangement) would constitute a 5% Person, unless the Pension Plan shall cause such Person (and all related Persons acting pursuant to a plan or arrangement) to agree to be bound by the provisions of this Agreement and to execute a transferee agreement reasonably satisfactory to General Motors and the Pension Plan to effectuate the purposes hereof. An executed copy of such agreement shall be delivered to General Motors prior to the consummation of any such proposed Transfer of the Transferable Securities. The foregoing restriction shall terminate on the second anniversary of the Split-Off Date; provided that if a Merger Event occurs prior to the second anniversary of the Split-Off Date, such restriction shall terminate on the second anniversary of the Merger Date or, in the event such Merger is abandoned, on the later of (i) the second anniversary of the Split-Off Date (subject to the occurrence of another Merger Event after such abandonment and prior to such second anniversary) and (ii) such date as the Pension Plan receives notice from General Motors or otherwise becomes aware of such abandonment. (g) Until all restrictions set forth in Sections 1(a) through 1(f) have terminated pursuant to the terms set forth therein, the Pension Plan shall not make any Transfer of securities - 6 - 55 convertible into or exercisable or exchangeable for the Transferable Securities or any other securities the value of which is derived from the Transferable Securities unless prior to the consummation of such Transfer General Motors has received a Modification Ruling (as defined below) confirming, in form and substance reasonably satisfactory to General Motors, that no income, gain or loss will be recognized by General Motors, EDS or General Motors's or EDS's stockholders or Affiliates on account of such Transfer. (h) The Trustee has determined that a Split-Off would substantially increase the value of the Transferable Securities and is therefore in the interests of the Pension Plan and the participants and beneficiaries of the Pension Plan. General Motors has represented to the Trustee that it will not consider a Split-Off unless it can be adequately assured of the tax-free status of such Split-Off. The Trustee recognizes that such tax-free status may be jeopardized by a taxable Merger that occurred within two years of a Split-Off. Accordingly, until all restrictions set forth in Sections 1(a) through 1(f) have terminated pursuant to the terms set forth therein, the Pension Plan (or the Trustee on behalf of the Pension Plan) will vote against any proposed Merger if (i) the Trustee determines, on the advice of tax counsel, that such Merger would not constitute a tax-free reorganization under Section 368 of the Code in which Section 354(a)(1) of the Code would apply to consideration received pursuant to such Merger by all shareholders of the Person who is then the issuer of the Transferable Securities or (ii) General Motors delivers to the Trustee, no later than three Business Days prior to the scheduled date for the stockholders meeting at which such Merger is to be voted on or the expiration date for the consent solicitation with respect thereto, as the case may be, an opinion of tax counsel reasonably satisfactory to the Trustee (which tax counsel may have been and be retained, employed or consulted from time to time by General Motors) that there is a material risk that such Merger would not constitute a tax-free reorganization as described above. The Trustee shall deliver written notice to General Motors of any determination made pursuant to clause (i) of the preceding sentence (or of any decision not to make any such determination) as promptly as practicable, and in any event no later than ten Business Days prior to the scheduled date for the stockholders meeting at which - 7 - 56 such Merger is to be voted on or the expiration date for the consent solicitation with respect thereto, as the case may be. (i) No Transfer or attempted Transfer of Transferable Securities in violation of this Agreement shall be made or recorded on the books of General Motors (or any other issuer of the Transferable Securities) and any such Transfer shall be void and of no effect. (j) Each certificate representing the shares of Class E Common Stock contributed to the Pension Plan pursuant to the Registration Rights Agreement shall conspicuously bear a legend in substantially the following form: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A TRANSFER AGREEMENT, DATED AS OF MARCH 12, 1995, BY AND BETWEEN GENERAL MOTORS CORPORATION ("GENERAL MOTORS") AND THE INITIAL HOLDER HEREOF THAT CONTAINS, AMONG OTHER THINGS, CERTAIN RESTRICTIONS ON THE TRANSFER OF SUCH SECURITIES. A COPY OF SUCH TRANSFER AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY GENERAL MOTORS TO THE HOLDER HEREOF UPON WRITTEN REQUEST." The certificates representing shares of Class E Common Stock held by the Pension Plan and acquired other than pursuant to the Registration Rights Agreement shall be promptly surrendered to General Motors in order that General Motors' transfer agent may place such legend upon them. General Motors (or any other issuer of the Transferable Securities) shall instruct its transfer agent that such legend shall be removed from the certificates representing any Transferable Securities upon the earlier of (i) the Pension Plan's Transfer of such shares of Transferable Securities if such Transfer is made in accordance with all applicable provisions of this Agreement and to a Person (or group of related Persons acting pursuant to a plan or arrangement) who is not required to execute a transferee agreement under Section 1(f) and (ii) the termination of all restrictions set forth in Sections 1(a) through 1(f) pursuant to the terms set forth therein. - 8 - 57 (k) Nothing herein shall be construed as a waiver or modification of any of the restrictions on Transfer of the Registrable Securities (as defined in the Registration Rights Agreement) set forth in the Registration Rights Agreement, in no event shall any Transfer of the Transferable Securities be deemed to be a permitted Transfer of the Registrable Securities under the Registration Rights Agreement solely because such Transfer is permitted under this Agreement and in no event shall any Transfer of the Registrable Securities be deemed to be a permitted Transfer of the Transferable Securities under this Agreement solely because such Transfer is permitted under the Registration Rights Agreement. 2. Representations, Warranties and Covenants. (a) The Pension Plan represents that it owns 17,233,484 shares of Class E Common Stock and 197,605* shares of Series C Preference Stock, in each case as of the date hereof. (b) The Pension Plan agrees that from and after the date hereof it shall not purchase or acquire, in open market transactions or otherwise, any additional shares of Class E Common Stock or any securities convertible into or exercisable or exchangeable for the Class E Common Stock or any other interest in the Class E Common Stock; provided, that (i) any securities received by the Pension Plan as consideration for any exchange or conversion of Class E Common Stock pursuant to the terms of a Split-Off or a Merger, (ii) any securities acquired by the Pension Plan as a dividend or other distribution on the Class E Common Stock and (iii) any shares of Class E Common Stock contributed to the Pension Plan pursuant to the Registration Rights Agreement, shall not violate this Section 2(b). The foregoing covenant shall terminate following the consummation of a Split-Off at the time described in clause (ii) of the last sentence of Section 1(c). 3. Cooperation and Other Covenants. (a) The Pension Plan shall take (or refrain from taking) all such actions as General Motors may reasonably request as necessary to ensure that General Motors obtains and maintains (i) a private letter ruling from the IRS (the "Split-Off Ruling") confirming, in form and substance reasonably satisfactory to - ----------------- * 197,605 Depositary Shares representing 19,760.5 shares of Series C Preference Stock. - 9 - 58 General Motors, that no income, gain or loss will be recognized by General Motors, its stockholders or Affiliates on account of a Split-Off (except to the extent of any additional consideration described in Section 356 of the Code) and (ii) a private letter ruling from the IRS or an opinion of counsel, as determined by General Motors in its sole discretion (the "Merger Ruling"), confirming, in form and substance reasonably satisfactory to General Motors, that no income, gain or loss will be recognized by General Motors, EDS or General Motors's or EDS's stockholders or Affiliates on account of a Merger. Without limiting the generality of the foregoing, the Pension Plan shall agree to be bound by such further restrictions on its ability to Transfer the Transferable Securities as may be reasonably necessary to satisfy the IRS that the Split-Off is not a device for the distribution of profits and earnings of General Motors to General Motors's stockholders and to make such further representations and covenants and execute such additional documents, in each case as General Motors may reasonably request as necessary in connection with obtaining either the Split-Off Ruling or the Merger Ruling. (b) If so requested by the Pension Plan, General Motors shall waive or modify any restriction set forth in Section 1 if and to the extent that General Motors obtains a private letter ruling from the IRS (the "Modification Ruling") confirming, in form and substance reasonably satisfactory to General Motors, that such proposed waiver or modification shall not cause General Motors, EDS or General Motors's or EDS's stockholders or Affiliates to recognize any income, gain or loss on account of either a Split-Off (except to the extent of any additional consideration described in Section 356 of the Code) or a Merger. Without limiting the generality of the foregoing, General Motors shall promptly seek to obtain any such Modification Ruling as the Pension Plan may reasonably request, including a Modification Ruling hereby requested by the Pension Plan, confirming, in form and substance reasonably satisfactory to General Motors, that the IRS will not consider all or part of the number of shares of Class E Common Stock owned by 5% Persons other than the Pension Plan for purposes of determining whether the continuity of interest requirement has been satisfied with respect to a Split-Off or a Merger. General Motors and the Pension Plan shall cooperate with each other (and any such tax counsel) and shall take (or refrain from taking) such - 10 - 59 actions as either party hereto may reasonably request as necessary to obtain any requested Modification Ruling. (c) General Motors shall promptly notify the Pension Plan of any intention of General Motors to effect or abandon a Split-Off and any intention of EDS of which EDS has notified General Motors with respect to a Merger or the abandonment of a Merger, in all such cases at such time and to the extent determined by General Motors, in its sole discretion, to be reasonably consistent with the purposes of this Agreement. (d) Until all restrictions set forth in Section 1 have terminated, the Pension Plan shall give General Motors written notice of any proposed Transfer of the Transferable Securities within a reasonable period of time prior to such proposed Transfer, and in any event no later than such date as any notice with respect to such proposed Transfer is required to be given by the Pension Plan pursuant to the Registration Rights Agreement (including any notice of election to participate in any Piggyback Registration) or, if no such date is provided for in the Registration Rights Agreement, 10 days prior to the proposed consummation of such Transfer. Each notice hereunder of a proposed Transfer shall set forth the number of shares of Transferable Securities then owned by the Pension Plan and the terms and conditions of such proposed Transfer, including, without limitation, the approximate number of Transferable Securities proposed to be Transferred, the proposed timetable for such Transfer, whether such Transfer is to be made pursuant to an underwritten public offering in accordance with Section 1(f) and, if such Transfer is to be made otherwise, the identity of any proposed transferee and the number of shares of Class E Common Stock otherwise then owned by such proposed transferee, all with sufficient particularity to enable General Motors to determine whether such proposed Transfer would comply with the provisions of this Agreement. If, in connection with any such proposed Transfer, the Pension Plan receives from any proposed underwriter, co-manager or transferee any certificate, representation, undertaking or other documentation intended to establish compliance with the provisions of this Agreement, then the Pension Plan shall deliver to General Motors a copy thereof prior to the consummation of such proposed Transfer. The Pension Plan shall give General Motors written notice of any material - 11 - 60 change in the terms and conditions of a proposed Transfer from those described in any previous notice thereof to General Motors from the Pension Plan as promptly as practicable, and in no event later than two Business Days prior to such time as such Transfer is then proposed to be consummated, and the Pension Plan shall not make any proposed Transfer other than in accordance with such terms and conditions as so described to General Motors. If at any time prior to the consummation of any proposed Transfer, General Motors determines, based on the advice of its legal counsel, that such proposed Transfer would violate any of the restrictions or be inconsistent with any of the provisions of this Agreement, then General Motors shall give notice to the Pension Plan of such determination and, unless and until tax counsel (which shall not be tax counsel regularly employed by General Motors or the Pension Plan unless otherwise agreed) mutually agreeable to General Motors and the Pension Plan (the fees and expenses of which shall be borne equally by General Motors and the Pension Plan) delivers an opinion to General Motors and the Pension Plan that such proposed Transfer would not so violate or be inconsistent with this Agreement, the Pension Plan shall not make such proposed Transfer. General Motors and the Pension Plan shall cooperate with each other (and any such tax counsel) and shall provide each other with such information as may reasonably be requested in order to enable any party (or such tax counsel) to make any determination with respect to this Agreement. (e) Each of the parties shall treat all notices of and information relating to proposed Transfers, Split-Offs and Mergers, including, without limitation, all notices pursuant to Sections 3(c) and 3(d), that are received from the other party with the strictest confidence and shall not disseminate such information; provided, that nothing herein shall prohibit disclosure of any such notice or information to the then issuer of the Transferable Securities. Nothing herein shall be construed to require General Motors or any of its Affiliates to make any public disclosure of information at any time. 4. Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs (including reasonable attorneys fees) caused by any breach of any provision of this - 12 - 61 Agreement and to exercise all other rights existing in its favor. The parties hereto agree and acknowledge that the Pension Plan's breach of any term or provision of this Agreement will materially and irreparably harm General Motors, that money damages will accordingly not be an adequate remedy for any breach of the provisions of this Agreement by the Pension Plan and that General Motors, in its sole discretion and in addition to any other remedies it may have at law or in equity, may apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. 5. Definitions and Interpretations. (a) Definitions. "Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act (or any successor thereto). "Business Day" means such days as the New York Stock Exchange, Inc. shall be open for trading. "Class E Common Stock" means Class E Common Stock, par value $0.10 per share, of General Motors and any securities issued or issuable with respect to the Class E Common Stock in connection with any stock dividend, stock split (forward or reverse), combination of shares, recapitalization, merger, consolidation, redemption, exchange of securities or other reorganization or reclassification after the date hereof, including, without limitation, shares of capital stock of EDS issued or issuable with respect to the Class E Common Stock in connection with a Split-Off and shares of capital stock issued or issuable with respect to such shares of capital stock of EDS in connection with a Merger. In the event of any of the foregoing with respect to the Class E Common Stock or similar transactions affecting the Class E Common Stock, all references herein to the designation "Class E Common Stock" and to any specific number of shares of Class E Common Stock shall be appropriately adjusted to give effect thereto, and shall include reference to all securities of the same class regardless of whether - 13 - 62 any such securities were issued or issuable with respect to the securities that previously constituted the Class E Common Stock. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder. "Exchange Agreement" means the Exchange and Registration Agreement, dated as of November 4, 1992, by and among General Motors, the Pension Plan and the General Motors Corporation Retirement Program for Salaried Employees. "5% Person" means any Person (or group of related Persons acting pursuant to a plan or arrangement) that, directly or indirectly, beneficially owns (as defined in Rule 13d-3) shares of Class E Common Stock that constitute 5% or more of the total voting power or total value of the Class E Common Stock then outstanding; provided that no Person (or group of related Persons acting pursuant to a plan or arrangement) shall be deemed a 5% Person for purposes of Section 1(c) if such Person (or group of related Persons acting pursuant to a plan or arrangement) (i) acquired such shares directly from General Motors or (ii) has executed and delivered to General Motors a transferee agreement pursuant to Section 1(f). "Foreign Person" means any person who is not either (i) a citizen or resident of the United States, (ii) a domestic partnership, (iii) a domestic corporation or (iv) an estate or trust treated as a U.S. person under Section 7701(a)(30)(D) of the Code. "IRS" means the Internal Revenue Service. "Person" means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof. "Series C Preference Stock" means Series C Convertible Preference Stock, par value $0.10 per share, of General Motors. - 14 - 63 "Transfer" means any sale, transfer or other disposition (including any pledge and any disposition upon the foreclosure of any pledge) or any agreement to do any of the foregoing. "Transferable Securities" means (i) the Class E Common Stock contributed to the Pension Plan pursuant to the Registration Rights Agreement from time to time, (ii) the Class E Common Stock held by the Pension Plan as of the date hereof which are subject to the Exchange Agreement and (iii) the securities issued or issuable with respect to the securities referred to in clauses (i) and (ii) in connection with any stock dividend, stock split (forward or reverse), combination of shares, recapitalization, merger, consol- idation, redemption, exchange of securities or other reorganization or reclassification after the date hereof, including, without limitation, shares of capital stock of EDS issued or issuable with respect to the Class E Common Stock in connection with a Split-Off and shares of capital stock issued or issuable with respect to the Class E Common Stock in connection with a Merger. In the event of any of the foregoing with respect to the Transferable Securities or similar transactions affecting the Transferable Securities, all references herein to the designation "Transferable Securities" and to any specific number of shares of Transferable Securities shall be appropriately adjusted to give effect thereto. (b) Interpretations. For purposes of this Agreement, "knowledge of the Pension Plan after reasonable inquiry" shall mean actual knowledge of the Pension Plan after such inquiry, provided that, for purposes of determining compliance of any proposed Transfer of Transferable Securities with the provisions of this Agreement, (i) the Pension Plan shall be deemed to have actual knowledge of the information contained in any Schedule 13D or 13G (or any successor thereto) filed under the Exchange Act or any amendment thereto with respect to the Class E Common Stock more than two Business Days prior to such proposed Transfer and (ii) if such Transfer is made pursuant to an underwritten public offering as described in Section 1(d), the Pension Plan shall be deemed to have made a reasonable inquiry if it shall have conducted a search of the filings of Schedules 13D and 13G (and any successors thereto) under the Exchange Act and any - 15 - 64 amendments thereto within two Business Days of such proposed Transfer. 6. Miscellaneous. (a) Successor Issuers. In the event that, at any time after the time at which the Class E Common Stock is converted into, exchanged for or otherwise becomes a security of EDS, EDS enters into any transaction pursuant to which the capital stock of EDS is to be converted into, exchanged for or otherwise become the right to receive securities of any issuer other than EDS, then all references herein to EDS (including this Section 6(a)) shall be deemed as of the time of consummation of such transaction to be references to both EDS and such successor issuer. (b) Amendments and Waivers. Except as otherwise pro- vided herein, the provisions of this Agreement may not be amended, modified or supplemented except by a writing signed by General Motors and the Pension Plan. (c) Notices. All notices and other communications provided for or permitted hereunder shall be in writing and shall be made by hand delivery, by registered or certified first-class mail, return receipt requested, overnight courier or facsimile transmission: (i) If to the Pension Plan: United States Trust Company of New York 114 West 47th Street New York, New York 10036 Attention: Senior Vice President and General Counsel Telephone: (212) 852-1302 Facsimile: (212) 852-1310 - 16 - 65 with copies to: General Motors Investment Management Corporation 767 Fifth Avenue New York, New York 10153 Attention: Vice President, Portfolio Strategy and Manager Relations Telephone: (212) 418-3590 Facsimile: (212) 418-6339 (ii) If to General Motors: General Motors Corporation 767 Fifth Avenue New York, New York 10153 Attention: Treasurer Telephone: (212) 418-3500 Facsimile: (212) 418-3695 with copies to: General Motors Corporation Legal Staff 3031 West Grand Boulevard Detroit, Michigan 48202 Attention: Warren G. Andersen, Esq. Telephone: (313) 974-1528 Facsimile: (313) 974-0685 All notices and communications shall be deemed to have been duly given and received: when delivered by hand, if hand delivered; the fifth Business Day after being deposited in the mail, registered or certified, return receipt requested, first class postage prepaid, or earlier Business Day actually received, if mailed; the first Business Day after being deposited with an overnight courier, postage prepaid, if by overnight courier; upon oral confirmation of receipt, if by facsimile transmission. Each party agrees promptly to confirm receipt of all notices. Whenever notices are required to be given by General Motors, such notices may only be given by the Treasurer of General - 17 - 66 Motors or another officer or employee of General Motors designated by the Treasurer in advance in writing to the recipient of such notice. Whenever notices are required to be given by any investment manager (including the Trustee) with respect to the Transferable Securities, such notices may only be given by an officer or employee of such investment manager designated in advance in writing to the recipient of such notice. (d) No Third Party Beneficiaries. This Agreement shall be for the sole and exclusive benefit of General Motors, the Pension Plan, the Trustee and any other investment manager or managers acting on behalf of the Pension Plan with respect to the Transferable Securities, and their respective successors, and directors, trustees, officers, employees, agents and controlling Persons indemnified hereunder. Nothing in this Agreement shall be construed to give any other Person any legal or equitable right, remedy or claim under this Agreement. (e) Descriptive Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not constitute a part hereof. (f) Cooperation. Each party hereto shall take such further action, and execute such additional documents, as may be reasonably requested by any other party hereto in order to carry out the purposes of this Agreement. (g) Binding Effect; Assignment. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by each of the parties and their successors. Except for an assignment to a successor trustee or to an investment manager as stated herein and except as provided in Section 1(f), none of the rights or obligations under this Agreement shall be assigned by the Pension Plan without the consent of General Motors or by General Motors without the consent of the Pension Plan. (h) Counterparts. This Agreement may be executed in counterparts, and shall be deemed to have been duly executed and delivered by all parties when each party has executed a counterpart hereof and delivered an original or facsimile copy thereof to the other party. Each such counterpart hereof shall be deemed to be an - 18 - 67 original, and all of such counterparts together shall constitute one and the same instrument. (i) Governing Law. All questions concerning the construction, validity and interpretation of this Agreement shall be governed by the internal laws (and not the laws of conflict) of the State of Delaware, except to the extent that the laws of the state or jurisdiction of incorporation or organization of the issuer of the Transferable Securities from time to time specifically govern questions concerning the relative rights of the issuer of the Transferable Securities and the stockholders of such issuer in their capacities as such. (j) Acknowledgements. The Pension Plan agrees that it will (i) obtain written acknowledgements, and provide a copy of such acknowledgments to General Motors from each of its investment managers with respect to the Transferable Securities (other than the Trustee), confirming that such entity has received and reviewed this Agreement and will comply with the terms of this Agreement applicable to it and (ii) inform each of the investment managers working with or for the Pension Plan in any capacity of the existence and terms of the covenant made by the Pension Plan in Section 2(b) and instruct each such investment manager to comply with such covenant at all times until such covenant terminates as provided in Section 2(b). * * * * * - 19 - 68 IN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Transfer Agreement on the date first above written. GENERAL MOTORS CORPORATION By: /s/ Heidi Kunz Name: Heidi Kunz Title: Vice President and Treasurer GENERAL MOTORS HOURLY-RATE EMPLOYEES PENSION PLAN By: UNITED STATES TRUST COMPANY OF NEW YORK, As Trustee By: /s/ Norman P. Goldberg Name: Norman P. Goldberg Title: Authorized Agent - 20 - 69 EXHIBIT B INTEREST RATE SCHEDULE The interest rate referred to in Section 2(f)(iv) shall be a per annum rate equal to the sum of (i) the rate quoted on the date of delivery of the Exercise Notice for United States Treasury bills with a maturity of 90 days and (ii) the amount set forth below under the column "Spread" corresponding to the rating (the "Rating") assigned by Standard & Poor's Ratings Group ("S&P") to the short term unsecured debt obligations of Issuer on the date of delivery of the Exercise Notice (it being understood that, for purposes of the foregoing, (i) the rating assigned to such debt obligations by any other rating agency shall be disregarded, (ii) any plus attached to a rating assigned by S&P shall be disregarded, (iii) any minus attached to a rating assigned by S&P shall be considered a downgrade to the next lowest rating and (iv) if S&P changes its rating system after the date hereof, the Ratings as set forth below shall be adjusted to the comparable ratings under such new rating system).
Rating Spread (in basis points) ------ ------ A or better 50 BBB 100 BB 250 B or below or No Rating 400
70 EXHIBIT C SUCCESSION AGREEMENT This Agreement is entered into as of ___________, ____, by and between ________________________, a __________ corporation ("Predecessor"), and ___________________, a __________ corporation ("Successor"). Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Registration Rights Agreement, dated as of ___________, 1995 (the "Registration Agreement") by and between General Motors Corporation, a Delaware corporation ("General Motors"), and United States Trust Company of New York, as trustee (the "Trustee") of a trust established under the General Motors Hourly-Rate Employees Pension Plan (the "Pension Plan"), for the account of and on behalf of the Pension Plan. WHEREAS, Predecessor is currently the issuer of the securities referred to as the "Registrable Securities" and "Class E Common Stock" in the Registration Agreement and generally has the rights and the obligations of Issuer under the Registration Agreement; and WHEREAS, pursuant to ________________ (the "Transaction"), shares of Class E Common Stock shall be [converted into] [exchanged for] securities of Successor (the "Successor Securities"), effective as of ____________ (the "[Conversion] [Exchange] Date"); and WHEREAS, the Registration Agreement contemplates that in the event of a transaction such as the Transaction, Successor shall generally succeed to the rights and obligations of Issuer under the Registration Agreement; and NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Predecessor and Successor hereby agree as follows: 1. Succession. (a) Effective as of the [Conversion] [Exchange] Date, all rights, obligations and restrictions with respect to shares of Class E Common Stock (including Registrable Securities) set forth in the Registration Agreement shall apply to the Successor Securities. (b) Effective as of the [Conversion] [Exchange] Date, Successor shall be bound by the Registration Agreement and shall succeed to all rights, restrictions and obligations of Issuer set 71 forth in the Registration Agreement, all references to Issuer therein shall thereafter be deemed to be references to Successor, and Predecessor shall be released from all obligations under the Registration Agreement. (c) Notwithstanding subsections (a) and (b) above, (i) all rights and obligations in Sections 1(a) through 1(e) of the Registration Agreement shall remain rights and obligations of General Motors and (ii) Predecessor shall not be released from any obligations under Section 10 of the Registration Agreement with respect to any registration of securities issued by Predecessor. 1. Cooperation. Predecessor and Successor shall take such further action, and execute such additional documents, as may be reasonably requested by either party in order to carry out the purposes of this Agreement. 2. Counterparts. This Agreement may be executed in counterparts, and shall be deemed to have been duly executed and delivered by all parties when each party has executed a counterpart hereof and delivered an original or facsimile copy thereof to the other party. Each such counterpart hereof shall be deemed to be an original, and all of such counterparts together shall constitute one and the same instrument. * * * - 2 - 72 IN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Succession Agreement on the date first above written. PREDECESSOR: _________________________________ By: _____________________________ Its: ____________________________ SUCCESSOR: _________________________________ By: _____________________________ Its: ____________________________ This Succession Agreement (including, without limitation, the release of the Predecessor from obligations under the Registration Agreement as set forth herein (except as provided in Section 1(c) above)) is acknowledged and agreed to as of this _____ day of _____________, ____. GENERAL MOTORS HOURLY-RATE EMPLOYEES PENSION PLAN By: UNITED STATES TRUST COMPANY OF NEW YORK, As Trustee By: _____________________________ Its: ____________________________ - 3 - -----END PRIVACY-ENHANCED MESSAGE-----