-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, I1veG5hKYog6eB9YFDGs8BJfj7qLfF2rvkvIpwA/0c+Jv0L1+dEI8YcVbe3LJHQ1 zSMlc5/WzJKDoye8YGbLFA== 0000950124-97-002267.txt : 19970416 0000950124-97-002267.hdr.sgml : 19970416 ACCESSION NUMBER: 0000950124-97-002267 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19970415 SROS: CSX 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: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-25221 FILM NUMBER: 97581407 BUSINESS ADDRESS: STREET 1: 3044 WEST GRAND BLVD CITY: DETROIT STATE: MI ZIP: 48202-3091 BUSINESS PHONE: 3135565000 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MOTORS CAPITAL TRUST G CENTRAL INDEX KEY: 0001037734 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-25221-01 FILM NUMBER: 97581408 BUSINESS ADDRESS: STREET 1: C/O GENERAL MOTORS CORP STREET 2: 100 RENAISSANCE CENTER CITY: DETROIT STATE: MI ZIP: 48243-7301 BUSINESS PHONE: 3135565000 MAIL ADDRESS: STREET 1: C/O GENERAL MOTORS CORP STREET 2: 100 RENAISSANCE CTR CITY: DETROIT STATE: MI ZIP: 48243-7301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MOTORS CAPITAL TRUST D CENTRAL INDEX KEY: 0001037761 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-25221-02 FILM NUMBER: 97581409 BUSINESS ADDRESS: STREET 1: C/O GENERAL MOTORS CORP STREET 2: 100 RENAISSANCE CTR CITY: DETROIT STATE: MI ZIP: 48243-7301 BUSINESS PHONE: 3135565000 MAIL ADDRESS: STREET 1: C/O GENERAL MOTORS CORP STREET 2: 100 RENAISSANCE CTR CITY: DETROIT STATE: MI ZIP: 48243-7301 S-4 1 FORM S-4 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 15, 1997 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- DELAWARE DELAWARE 38-0572515 7374 GENERAL MOTORS CORPORATION DELAWARE [PENDING] 9999 GENERAL MOTORS CAPITAL TRUST D (State or other jurisdiction [PENDING] 9999 GENERAL MOTORS CAPITAL TRUST G of (I.R.S. Employer (Primary Standard (Exact name of issuer as incorporation or Identification Industrial specified in its charter) organization) No.) Classification Number)
100 RENAISSANCE CENTER, DETROIT, MICHIGAN 48243-7301; (313) 556-5000 (Address, including zip code, and telephone number, including area code, of principal executive offices) PETER R. BIBLE CHIEF ACCOUNTING OFFICER GENERAL MOTORS CORPORATION 100 RENAISSANCE CENTER DETROIT, MI 48243-7301 (313) 556-5000 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- Copies to: MARTIN I. DARVICK, ESQ. GENERAL MOTORS CORPORATION 3031 WEST GRAND BOULEVARD DETROIT, MI 48202-3091 ROBERT S. OSBORNE, P.C. KIRKLAND & ELLIS 200 EAST RANDOLPH DRIVE CHICAGO, IL 60601-6636 VINCENT J. PISANO, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 919 THIRD AVENUE NEW YORK, NY 10022 --------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective and all other conditions to the Exchange Offers (the "Offers") described in the enclosed Prospectus have been satisfied or waived. If the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: [ ] --------------------- CALCULATION OF REGISTRATION FEE
============================================================================================================================== PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(3) REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ % Trust Originated Preferred Securities(SM) (TOPrS)(SM), Series D, of General Motors Capital Trust D........................................... 5,462,917 $25.9375 $141,694,409.70 $42,937.70 - ------------------------------------------------------------------------------------------------------------------------------ % Junior Subordinated Deferrable Interest Debentures, Series D, of General Motors Corporation....................................... $136,572,925 -- -- -- - ------------------------------------------------------------------------------------------------------------------------------ Guarantee of the Series D Preferred Securities by General Motors Corporation........................ $136,572,925 -- -- -- - ------------------------------------------------------------------------------------------------------------------------------ % Trust Originated Preferred Securities(SM) (TOPrS)(SM), Series G, of General Motors Capital Trust G........................................... 9,071,910 $27.9375 $253,446,485.60 $76,801.97 - ------------------------------------------------------------------------------------------------------------------------------ % Junior Subordinated Deferrable Interest Debentures, Series G, of General Motors Corporation....................................... $226,797,750 -- -- -- - ------------------------------------------------------------------------------------------------------------------------------ Guarantee of the Series G Preferred Securities by General Motors Corporation........................ $226,797,750 -- -- -- ==============================================================================================================================
(1) Estimated maximum amount of each class of securities issuable by General Motors Corporation ("General Motors"), General Motors Capital Trust D (the "Series D Trust") and General Motors Capital Trust G (the "Series G Trust") . Also registered hereby, in addition to the rights of holders of the Preferred Securities under the Guarantees and under the Junior Subordinated Debentures, are the obligations of General Motors in the indentures relating to the Junior Subordinated Debentures and in the Declarations of Trust, including General Motors' obligation, as issuer of the Junior Subordinated Debentures, to pay costs, expenses and certain liabilities of each of the Trusts. (2) Each holder of a Series D 7.92% Depositary Share representing one-fourth of a share of Series D 7.92% Preference Stock upon exchange will receive one Series D Preferred Security issued by the Series D Trust, which will hold Series D Junior Subordinated Debentures for their benefit. Each holder of a Series G 9.12 % Depositary Share representing one-fourth of a share of Series G 9.12% Preference Stock upon exchange will receive one Series G Preferred Security issued by the Series G Trust, which will hold Series G Junior Subordinated Debentures for their benefit. (3) Calculated in accordance with Rule 457(f) under the Securities Act of 1933 on the basis of the average of the high and low prices reported for the Series D 7.92% Depositary Shares and the Series G 9.12% Depositary Shares, in each case on April 9, 1997. Pursuant to Rule 457(a) under the Securities Act of 1933, no separate fee is payable with respect to the Guarantees or the Junior Subordinated Debentures. --------------------- THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. ================================================================================ 2 PROSPECTUS SUBJECT TO COMPLETION GENERAL MOTORS CORPORATION GENERAL MOTORS CAPITAL TRUST D GENERAL MOTORS CAPITAL TRUST G OFFERS TO EXCHANGE General Motors Capital Trust D % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series D (Liquidation Amount $25.00 per Series D Preferred Security and guaranteed to the extent set forth herein by General Motors Corporation) for up to 5,462,917 Depositary Shares, Each Representing One-Fourth of a Share of Series D 7.92% Preference Stock of General Motors Corporation CUSIP 370442857 General Motors Capital Trust G % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series G (Liquidation Amount $25.00 per Series G Preferred Security and guaranteed to the extent set forth herein by General Motors Corporation) for up to 9,071,910 Depositary Shares, Each Representing One-Fourth of a Share of Series G 9.12% Preference Stock of General Motors Corporation CUSIP 370442790 EACH OF THE OFFERS (AND THE RELATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , 1997, UNLESS EITHER OR BOTH OF THE OFFERS IS EXTENDED. General Motors Corporation, a Delaware corporation ("General Motors"), and General Motors Capital Trust D, a Delaware statutory business trust (the "Series D Trust"), hereby offer, upon the terms and subject to the conditions set forth in this Prospectus and the accompanying Letter of Transmittal relating to the Series D 7.92% Depositary Shares, to exchange % Trust Originated Preferred Securities, Series D, representing undivided beneficial ownership interests in the assets of the Series D Trust (the "Series D Preferred Securities"), for up to 5,462,917 (i.e., approximately 90%) of the outstanding depositary shares (the "Series D 7.92% Depositary Shares"), each representing one-fourth of a share of General Motors' Series D 7.92% Preference Stock, $0.10 par value per share (the "Series D 7.92% Preference Stock"), not owned by General Motors (this Prospectus, together with the Letter of Transmittal for the Series D 7.92% Depositary Shares, constituting the "Series D Offer"). General Motors and General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"), hereby offer, upon the terms and subject to the conditions set forth in this Prospectus and the accompanying Letter of Transmittal relating to the Series G 9.12% Depositary Shares, to exchange % Trust Originated Preferred Securities, Series G, representing undivided beneficial ownership interests in the assets of the Series G Trust (the "Series G Preferred Securities"), for up to 9,071,910 (i.e., approximately 90%) of the outstanding depositary shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of General Motors' Series G 9.12% Preference Stock, $0.10 par value per share (the "Series G 9.12% Preference Stock"), not owned by General Motors (this Prospectus, together with the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, constituting the "Series G Offer"). Exchanges will be made on the basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange in the Series D Offer and one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange in the Series G Offer. If more than the maximum number of Depositary Shares of either series is validly tendered and not withdrawn on or prior to the Expiration Date for the applicable Offer, the applicable Trust will accept such related Depositary Shares for exchange on a pro rata basis as described herein. As of the date of this Prospectus, there are Series D 7.92% Depositary Shares outstanding and not owned by General Motors and Series G 9.12% Depositary Shares outstanding and not owned by General Motors. (Continued on next page) --------------------- SEE "RISK FACTORS AND SPECIAL CONSIDERATIONS RELATING TO THE OFFERS" STARTING ON PAGE 19 FOR A DISCUSSION OF CERTAIN FACTORS RELATING TO THE PREFERRED SECURITIES THAT SHOULD BE CONSIDERED BY INVESTORS, INCLUDING THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF DISTRIBUTIONS ON THE PREFERRED SECURITIES MAY BE DEFERRED AND THE RELATED UNITED STATES FEDERAL INCOME TAX CONSEQUENCES. --------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------------- Merrill Lynch & Co. has been retained as lead Dealer Manager to solicit exchanges of Depositary Shares for Preferred Securities. See "The Offers--Dealer Manager; Soliciting Dealers." The First National Bank of Boston has been retained as Exchange Agent in connection with the Offers. Georgeson & Company Inc. has been retained to act as Information Agent to assist in connection with the Offers. --------------------- The Dealer Manager for the Offers is: MERRILL LYNCH & CO. The date of this Prospectus is , 1997. - ------------------------- (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 3 The Series D Offer and the Series G Offer are each an "Offer" and together constitute the "Offers." The Series D 7.92% Depositary Shares and the Series G 9.12% Depositary Shares together constitute the "Depositary Shares." The Series D 7.92% Preference Stock and the Series G 9.12% Preference Stock are each a "Preference Stock" and together constitute the "Preference Stocks." The Series D Preferred Securities and the Series G Preferred Securities are each a "Preferred Security" and together constitute the "Preferred Securities." THERE IS A SEPARATE LETTER OF TRANSMITTAL AND NOTICE OF GUARANTEED DELIVERY FOR EACH OFFER. EACH OFFER IS INDEPENDENT FROM THE OTHER OFFER. EACH OFFER IS HOWEVER, SUBJECT TO CERTAIN CONDITIONS, AS DESCRIBED HEREIN. Concurrently with the issuance of Series D Preferred Securities in exchange for Series D 7.92% Depositary Shares validly tendered in the Series D Offer, General Motors will deposit in the Series D Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series D, due , 2012 (the "Series D Junior Subordinated Debentures"), having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series D Preferred Securities and the proceeds received upon issuance of the Common Securities (as defined herein) to be issued by the Series D Trust (the "Series D Common Securities"). Subject to General Motors' right to redeem the Series D Junior Subordinated Debentures upon the occurrence of a Tax Event (as defined herein) in respect of the Series D Trust as described below, the Series D Junior Subordinated Debentures will mature on , 2012, which may be shortened to a date not earlier than August 1, 1999 (such date, including as so shortened, the "Series D Stated Maturity"), subject to satisfying certain conditions. Concurrently with the issuance of Series G Preferred Securities in exchange for Series G 9.12% Depositary Shares validly tendered in the Series G Offer, General Motors will deposit in the Series G Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series G, due , 2012 (the "Series G Junior Subordinated Debentures"), having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series G Preferred Securities and the proceeds received upon issuance of the Common Securities to be issued by the Series G Trust (the "Series G Common Securities"). Subject to General Motors' right to redeem the Series G Junior Subordinated Debentures upon the occurrence of a Tax Event in respect of the Series G Trust as described below, the Series G Junior Subordinated Debentures will mature on , 2012, which may be shortened to a date not earlier than January 1, 2001 (such date, including as so shortened, the "Series G Stated Maturity"), subject to satisfying certain conditions. The Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures together constitute the "Junior Subordinated Debentures." The Series D Common Securities and the Series G Common Securities together constitute the "Common Securities" described herein. The Series D Stated Maturity and the Series G Stated Maturity are each a "Stated Maturity" and together constitute the "Stated Maturities." NONE OF GENERAL MOTORS, THE BOARD OF DIRECTORS OF GENERAL MOTORS, THE TRUSTEES OF THE SERIES D TRUST, THE SERIES D TRUST, THE TRUSTEES OF THE SERIES G TRUST NOR THE SERIES G TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF DEPOSITARY SHARES AS TO WHETHER TO EXCHANGE OR REFRAIN FROM EXCHANGING THEIR DEPOSITARY SHARES IN THE OFFERS. HOLDERS OF DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX ADVISORS IN MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES. IN ORDER TO PARTICIPATE IN AN OFFER, HOLDERS OF DEPOSITARY SHARES MUST SUBMIT A LETTER OF TRANSMITTAL RELATING TO THE DEPOSITARY SHARES BEING TENDERED IN THE APPLICABLE OFFER AND COMPLY WITH THE OTHER PROCEDURES FOR TENDERING IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE APPLICABLE LETTER OF TRANSMITTAL PRIOR TO THE APPLICABLE EXPIRATION DATE (AS DEFINED HEREIN). SEE "THE OFFERS--PROCEDURES FOR TENDERING." (Continued on next page) ii 4 For a description of the other terms of the Offers, see "The Offers--Terms of The Offers," "--Expiration Dates; Extensions; Amendments; Termination," and "--Withdrawals of Tenders." Application will be made to list each of the Series D Preferred Securities and the Series G Preferred Securities on the New York Stock Exchange, Inc. (the "NYSE"). In order to satisfy the NYSE listing requirements with respect to each such series of the Preferred Securities, acceptance of the Depositary Shares validly tendered in each Offer is subject to the condition with respect to each Offer that as of the applicable Expiration Date there be at least 400 record or beneficial holders of at least 1,000,000 Preferred Securities to be issued in exchange for the Depositary Shares tendered in such Offer (with respect to each Offer, the "Minimum Distribution Condition"), which condition may not be waived. See "The Offers--Expiration Dates; Extensions; Amendments; Termination" and " --Conditions to the Offers." Each of the Trusts expressly reserves the right with respect to its Offer, in its sole discretion, subject to applicable law, to (i) terminate its Offer, not accept for exchange the Depositary Shares tendered in its Offer and promptly return such Depositary Shares upon the failure of any condition specified above or in "The Offers--Conditions to the Offers," (ii) waive any condition to its Offer (other than the Minimum Distribution Condition) and accept all Depositary Shares previously tendered pursuant to its Offer, (iii) extend the Expiration Date of its Offer and retain all Depositary Shares tendered pursuant to its Offer until such Expiration Date, subject, however, to all withdrawal rights of holders tendering Depositary Shares in its Offer (see "The Offers--Withdrawal of Tenders"), (iv) amend the terms of its Offer, (v) modify the form of the consideration to be paid pursuant to its Offer or (vi) not accept for exchange the Depositary Shares tendered in its Offer at any time on or prior to the Expiration Date for its Offer, for any reason. Any amendment applicable to an Offer will apply to all Depositary Shares tendered pursuant to such Offer. The minimum period during which an Offer must remain open following material changes in the terms of such Offer or the information concerning such Offer, other than a change in the percentage of securities sought or the price, depends upon the facts and circumstances, including the relative materiality of such terms or information. See "The Offers--Expiration Dates; Extensions; Amendments; Termination." General Motors will own directly or indirectly all of the securities representing common undivided beneficial interests in the assets of each Trust (with respect to each Trust, the "Common Securities" and, together with the Preferred Securities of such Trust, the "Trust Securities" of such Trust). The Trust Securities of the Series D Trust are sometimes referred to herein as the "Series D Trust Securities" and the Trust Securities of the Series G Trust are sometimes referred to herein as the "Series G Trust Securities." Each of the Trusts exists for the sole purpose of (i) issuing (a) its Preferred Securities in exchange for the Depositary Shares validly tendered in its Offer and delivering the Depositary Shares received in its Offer to General Motors in consideration for the deposit by General Motors in such Trust as trust assets of the related series of Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of its Preferred Securities and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equal aggregate stated principal amount of the applicable series of Junior Subordinated Debentures and (ii) engaging in those other activities as are necessary or incidental thereto. The Preferred Securities and the Common Securities of each Trust will rank pari passu with each other and will have equivalent terms, except that (i) if an event of default under the Declaration (as defined herein) relating to a Trust occurs and is continuing, the holders of such Trust's Preferred Securities will have a priority over holders of such Trust's Common Securities with respect to payments in respect of distributions and payments upon liquidation, redemption or otherwise and (ii) the holders of a Trust's Common Securities have the exclusive right (subject to the terms of the applicable Declaration) to appoint, replace or remove the Trustees (as defined herein) of such Trust and to increase or decrease the number of Trustees of such Trust upon the occurrence of certain events described herein. See "Prospectus Summary--Description of Preferred Securities and Junior Subordinated Debentures." Holders of the Series D Preferred Securities are entitled to receive cumulative cash distributions at an annual rate of % of the liquidation amount of $25 per Series D Preferred Security, accruing from the first date following the Series D Expiration Date (the "Series D Accrual Date"), and payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing August 1, 1997 ("Series D (Continued on next page) iii 5 distributions"), subject to any applicable Extension Periods (as defined herein). In addition, holders of the Series D Preferred Securities will be entitled to an additional cash distribution at the rate of 7.92% per annum of the liquidation amount thereof from April 1, 1997 through the Series D Expiration Date ("Series D Pre-Issuance Accrued Distribution") in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series D 7.92% Depositary Shares accepted for exchange, such additional distribution to be made on August 1, 1997 to holders of the Series D Preferred Securities on the record date for such distribution. Holders of the Series G Preferred Securities are entitled to receive cumulative cash distributions at an annual rate of % of the liquidation amount of $25 per Series G Preferred Security, accruing from the first date following the Series G Expiration Date (the "Series G Accrual Date"), and payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing August 1, 1997 ("Series G distributions"), subject to any applicable Extension Periods. In addition, holders of the Series G Preferred Securities will be entitled to an additional cash distribution at the rate of 9.12% per annum of the liquidation amount thereof from April 1, 1997 through the Series G Expiration Date ("Series G Pre-Issuance Accrued Distribution") in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series G 9.12% Depositary Shares accepted for exchange, such additional distribution to be made on August 1, 1997 to holders of the Series G Preferred Securities on the record date for such distribution. The Series D Accrual Date and the Series G Accrual Date are each an "Accrual Date" and together constitute the "Accrual Dates." The Series D distributions and Series G distributions are each "distributions" and together constitute the "distributions". The Series D Pre-Issuance Accrual Distribution and the Series G Pre-Issuance Accrual Distribution are each a "Pre-Issuance Accrual Distribution" and together constitute the "Pre-Issuance Accrual Distributions." The distribution rate and the distribution and other payment dates for each series of the Preferred Securities will correspond to the interest rate and the interest and other payment dates on the related series of Junior Subordinated Debentures. As a result, if principal or interest is not paid on the Series D Junior Subordinated Debentures, including as a result of General Motors' election to extend the interest payment period on the Series D Junior Subordinated Debentures as described below, the Series D Trust will not make payments on the Series D Trust Securities and, if principal or interest is not paid on the Series G Junior Subordinated Debentures, including as a result of General Motors' election to extend the interest payment period on the Series G Junior Subordinated Debentures as described below, the Series G Trust will not make payments on the Series G Trust Securities. The payment of distributions out of moneys held by each Trust and payments on liquidation of each Trust or the redemption of its Preferred Securities, as set forth below, are guaranteed by General Motors (with respect to each Trust, the "Preferred Securities Guarantee") to the extent described herein and under "Description of the Preferred Securities Guarantees." Each Preferred Securities Guarantee covers payments of distributions and other payments on the applicable Trust's Preferred Securities only if and to the extent that such Trust has funds available therefor, which will not be the case unless General Motors has made a payment of interest or principal or other payments on the Junior Subordinated Debentures held by such Trust as its sole asset. With respect to each Trust, the applicable Preferred Securities Guarantee, when taken together with General Motors' obligations under the applicable series of Junior Subordinated Debentures, the Indenture (as defined herein) and the applicable Declaration, including General Motors' obligations, as issuer of the applicable series of Junior Subordinated Debentures, to pay costs, expenses, debts and obligations of such Trust (other than with respect to the payment of principal, interest and premium, if any, on the Trust Securities of such Trust), provides a full and unconditional guarantee of amounts due on the Preferred Securities of such Trust. See "Risk Factors and Special Considerations Relating to the Offers--Rights Under the Preferred Securities Guarantees" herein. The obligations of General Motors under each Preferred Securities Guarantee are subordinate and junior in right of payment to all other liabilities of General Motors and rank pari passu with the most senior preferred stock issued, from time to time, if any, by General Motors. The obligations of General Motors under the Junior Subordinated Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations (each as (Continued on next page) iv 6 defined herein) of General Motors, which aggregated approximately $89.3 billion at December 31, 1996, and rank pari passu with General Motors' other general unsecured creditors. So long as General Motors shall not be in default in the payment of interest on the Junior Subordinated Debentures held by a Trust, General Motors has the right to defer payments of interest on such Junior Subordinated Debentures by extending the interest payment period on such Junior Subordinated Debentures at any time for up to 20 consecutive quarters (each, an "Extension Period"), provided that no Extension Period may extend beyond the Stated Maturity of such Junior Subordinated Debentures. If interest payments are so deferred, distributions on the Trust Securities of the applicable Trust will also be deferred. During any such Extension Period, distributions on the Trust Securities of such Trust will continue to accrue with interest thereon (to the extent permitted by applicable law) at an annual rate of (x) % with respect to the Series D Preferred Securities or (y) % with respect to the Series G Preferred Securities, in each case compounded quarterly, and during any such Extension Period, holders of the Trust Securities of such Trust will be required to include deferred interest income in their gross income for United States federal income tax purposes in advance of receipt of the cash distributions with respect to such deferred interest payments. With respect to each series of Junior Subordinated Debentures, there could be multiple Extension Periods of varying lengths throughout the term of such Junior Subordinated Debentures. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Distributions," "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Periods." The Series D Junior Subordinated Debentures are redeemable by General Motors, (i) in whole or in part, from time to time, on or after August 1, 1999, at a prepayment price (the "Series D Optional Prepayment Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of prepayment or (ii) in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event, at a prepayment price (the "Series D Tax Event Prepayment Price" and, together with the Series D Optional Prepayment Price, the "Series D Prepayment Price") equal to % of the principal amount thereof from the Series D Expiration Date (as defined herein) through July 31, 1997, declining ratably on each August 1 thereafter to 100% on August 1, 1999, plus accrued and unpaid interest thereon to the date of prepayment. If General Motors redeems the Series D Junior Subordinated Debentures, the Series D Trust must redeem Series D Trust Securities on a pro rata basis having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Junior Subordinated Debentures so redeemed at a redemption price equal to (i) the Series D Optional Prepayment Price (the "Series D Optional Redemption Price") if redeemed on or after August 1, 1999 or (ii) the Series D Tax Event Prepayment Price (the "Series D Tax Event Redemption Price" and, together with the Series D Optional Redemption Price, the "Series D Redemption Price") if redeemed prior to August 1, 1999, upon the occurrence of a Tax Event. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Mandatory Redemptions." The Series D Preferred Securities will be redeemed upon maturity of the Series D Junior Subordinated Debentures. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Distributions," "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Period." The Series G Junior Subordinated Debentures are redeemable by General Motors, (i) in whole or in part, from time to time, on or after January 1, 2001, at a prepayment price (the "Series G Optional Prepayment Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of prepayment or (ii) in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event, at a prepayment price (the "Series G Tax Event Prepayment Price" and, together with the Series G Optional Prepayment Price, the "Series G Prepayment Price") equal to % of the principal amount thereof from the Series G Expiration Date (as defined herein) through December 31, 1997, declining ratably on each January 1 thereafter to 100% on January 1, 2001, plus accrued interest thereon to the date of prepayment. If General Motors redeems the Series G Junior Subordinated Debentures, the Series G Trust must redeem Series G Trust Securities on a pro rata basis having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Junior Subordinated Debentures so redeemed at a redemption price equal to (i) the Series G Optional Prepayment Price (the "Series G Optional Redemption Price") if (Continued on next page) v 7 redeemed on or after January 1, 2001 or (ii) the Series G Tax Event Prepayment Price (the "Series G Tax Event Redemption Price" and, together with the Series G Optional Redemption Price, the "Series G Redemption Price") if redeemed prior to January 1, 2001, upon the occurrence of a Tax Event. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Mandatory Redemptions." The Series G Preferred Securities will be redeemed upon maturity of the Series G Junior Subordinated Debentures. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Distributions," "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Period." The Series D Optional Prepayment Price and the Series G Optional Prepayment Price are each "Optional Prepayment Prices." The Series D Tax Event Prepayment Price and the Series G Tax Event Prepayment Price are each a "Tax Event Prepayment Price." The Series D Redemption Price and the Series G Redemption Price are each a "Redemption Price." General Motors will have the right at any time to liquidate a Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of Trust Securities of such Trust. General Motors has no present intention to take such action with respect to either Trust. If the Junior Subordinated Debentures held by a Trust are distributed to the holders of the Trust Securities of such Trust, General Motors will use its best efforts to have the applicable series of Junior Subordinated Debentures listed on the NYSE or on such other exchange as the related series of Preferred Securities are then listed. See "Description of the Preferred Securities--Tax Event Redemptions or Distributions" and "Description of the Junior Subordinated Debentures." In the event of the involuntary or voluntary dissolution, winding-up or termination of the Series D Trust, the holders of the Series D Preferred Securities will be entitled to receive for each Series D Preferred Security then held a liquidation amount of $25 plus accrued and unpaid distributions thereon (including interest thereon) to the date of payment, unless, in connection with such dissolution, the Series D Junior Subordinated Debentures are distributed to the holders of the Series D Preferred Securities. In the event of the involuntary or voluntary dissolution, winding-up or termination of the Series G Trust, the holders of the Series G Preferred Securities will be entitled to receive for each Series G Preferred Security then held a liquidation amount of $25 plus accrued and unpaid distributions thereon (including interest thereon) to the date of payment, unless, in connection with such dissolution, the Series G Junior Subordinated Debentures are distributed to the holders of the Series G Preferred Securities. See "Description of the Preferred Securities--Liquidation Distribution Upon Dissolution." The Depositary Shares are listed and principally traded on the NYSE under the symbol "GM Pr D" for the Series D 7.92% Depositary Shares and "GM Pr G" for the Series G 9.12% Depositary Shares. On April , 1997, the last full day of trading prior to the date of this Prospectus, the closing sales prices of the Depositary Shares as reported on the NYSE Composite Tape were $ per Series D 7.92% Depositary Share and $ per Series G 9.12% Depositary Share. HOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE DEPOSITARY SHARES. To the extent that Depositary Shares are tendered and accepted in the Offers, the terms on which untendered Depositary Shares could subsequently be sold could be adversely affected. In addition, following the applicable Expiration Date, and in accordance with and subject to applicable law, General Motors may from time to time acquire Depositary Shares of either or both series in the open market, by tender offer, subsequent exchange offer, redemption of the underlying Preference Stock or otherwise. To the extent that any such acquisition of Depositary Shares causes the number of outstanding Depositary Shares of a series to be less than 100,000, the NYSE may delist such Depositary Shares from the NYSE and the trading market for such outstanding Depositary Shares of such series could be adversely affected. General Motors' decision to make such acquisitions is dependent on many factors, including market conditions in effect at the time of any contemplated acquisition. Accordingly, General Motors cannot predict whether and to what extent it will acquire any additional Depositary Shares and the consideration to be paid therefor. See "Listing and Trading of Preferred Securities and Depositary Shares." (Continued on next page) vi 8 General Motors will pay to Soliciting Dealers (as defined herein) designated by the record or beneficial owner, as appropriate, of Depositary Shares validly tendered and accepted pursuant to the Offers a solicitation fee of (x) $0.50 per Series D 7.92% Depositary Share ($0.25 per Series D 7.92% Depositary Share with respect to the solicitation of beneficial holders of 10,000 or more such shares) and (y) $0.50 per Series G 9.12% Depositary Share ($0.25 per Series G 9.12% Depositary Share with respect to the solicitation of beneficial holders of 10,000 or more such shares), in each case subject to certain conditions. Soliciting Dealers are not entitled to a solicitation fee for any Depositary Shares beneficially owned by such Soliciting Dealer. See "The Offers--Dealer Manager; Soliciting Dealers." NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFERS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY ANY OF GENERAL MOTORS, THE SERIES D TRUST, THE TRUSTEES OF THE SERIES D TRUST, THE SERIES G TRUST, THE TRUSTEES OF THE SERIES G TRUST OR THE DEALER MANAGER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY EXCHANGE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF ANY OF GENERAL MOTORS, THE SERIES D TRUST OR THE SERIES G TRUST SINCE THE RESPECTIVE DATES AS OF WHICH INFORMATION IS GIVEN HEREIN. NO OFFER IS BEING MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF DEPOSITARY SHARES IN ANY JURISDICTION IN WHICH THE MAKING OF AN OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. HOWEVER, GENERAL MOTORS, THE SERIES D TRUST AND THE SERIES G TRUST MAY, AT THEIR DISCRETION, TAKE SUCH ACTION AS THEY MAY DEEM NECESSARY TO MAKE AN OFFER IN ANY SUCH JURISDICTION AND EXTEND AN OFFER TO HOLDERS OF DEPOSITARY SHARES IN SUCH JURISDICTION. IN ANY JURISDICTION THE SECURITIES LAWS OR BLUE SKY LAWS OF WHICH REQUIRE AN OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, EACH OFFER IS BEING MADE ON BEHALF OF THE APPLICABLE TRUST BY THE DEALER MANAGER OR ONE OR MORE REGISTERED BROKERS OR DEALERS WHICH ARE LICENSED UNDER THE LAWS OF SUCH JURISDICTION. vii 9 TABLE OF CONTENTS
PAGE ---- AVAILABLE INFORMATION....................................... 1 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 2 PROSPECTUS SUMMARY.......................................... 3 RISK FACTORS AND SPECIAL CONSIDERATIONS RELATING TO THE OFFERS.................................................... 19 COMPARISON OF PREFERRED SECURITIES AND DEPOSITARY SHARES.... 25 GENERAL MOTORS CORPORATION.................................. 33 GENERAL MOTORS SELECTED FINANCIAL DATA AND CERTAIN PER SHARE DATA...................................................... 34 RECENT DEVELOPMENTS......................................... 36 GENERAL MOTORS SUMMARY UNAUDITED CONDENSED CONSOLIDATED HISTORICAL FINANCIAL DATA................................. 36 GENERAL MOTORS RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS............................. 38 CAPITALIZATION.............................................. 39 ACCOUNTING TREATMENT........................................ 40 THE TRUSTS.................................................. 41 THE OFFERS.................................................. 44 LISTING AND TRADING OF PREFERRED SECURITIES AND DEPOSITARY SHARES.................................................... 53 TRANSACTIONS AND ARRANGEMENTS CONCERNING THE OFFERS......... 54 FEES AND EXPENSES; TRANSFER TAXES........................... 54 PRICE RANGES OF DEPOSITARY SHARES........................... 55 DESCRIPTION OF THE PREFERRED SECURITIES..................... 56 DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES.......... 68 DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES........... 71 DESCRIPTION OF THE PREFERENCE STOCKS AND DEPOSITARY SHARES.................................................... 81 RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE JUNIOR SUBORDINATED DEBENTURES AND THE PREFERRED SECURITIES GUARANTEES................................................ 87 UNITED STATES FEDERAL INCOME TAXATION....................... 89 LEGAL MATTERS............................................... 93 EXPERTS..................................................... 93
10 AVAILABLE INFORMATION This Prospectus constitutes a part of a Registration Statement on Form S-4 (together with all amendments and exhibits thereto, the "Registration Statement") filed by General Motors, the Series D Trust and the Series G Trust with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the securities offered pursuant to the Offers. This Prospectus does not contain all of the information set forth in such Registration Statement, certain parts of each of which are omitted in accordance with the rules and regulations of the Commission. With respect to each Offer, reference is made to the Registration Statement and to the exhibits relating thereto for further information with respect to General Motors, each of the Trusts and the securities. Any statements contained herein concerning the provisions of any document filed as an exhibit to the Registration Statement or otherwise filed with the Commission or incorporated by reference herein are not necessarily complete, and, in each instance, reference is made to the copy of such document so filed for a more complete description of the matter involved. Each such statement is qualified in its entirety by such reference. General Motors is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Commission. Reports, proxy statements and other information concerning General Motors can be inspected and copied at prescribed rates at the Commission's Public Reference Room, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as the following Regional Offices of the Commission: 7 World Trade Center, 13th Floor, New York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained by mail from the Commission's Public Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. If available, such reports and other information may also be accessed through the Commission's electronic data gathering, analysis and retrieval system ("EDGAR") via electronic means, including the Commission's web site on the Internet (http://www.sec.gov). Such reports, proxy statements and other information may also be inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005, where the Class H Common Stock, $0.10 par value per share, of General Motors (the "Class H Common Stock") and the Common Stock, $1 2/3 par value per share, of General Motors (the "$1 2/3 Common Stock") are listed, and at the offices of the following other stock exchanges where the $1 2/3 Common Stock is listed in the United States: the Chicago Stock Exchange, Inc., One Financial Place, 440 South LaSalle Street, Chicago, Illinois 60605; the Pacific Stock Exchange, Inc., 233 South Beaudry Avenue, Los Angeles, California 90012 and 301 Pine Street, San Francisco, California 94104; and the Philadelphia Stock Exchange, Inc., 1900 Market Street, Philadelphia, Pennsylvania 19103. No separate financial statements of either of the Trusts have been included herein. General Motors does not consider that such financial statements would be material to holders of the Preferred Securities because (i) all of the voting securities of each Trust will be owned, directly or indirectly, by General Motors, a reporting company under the Exchange Act, (ii) neither of the Trusts has any independent operations and each Trust exists for the sole purpose of issuing (a) its Preferred Securities in exchange for Depositary Shares validly tendered in its Offer and delivering such Depositary Shares to General Motors in consideration of the deposit by General Motors as trust assets of the related series of Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of its Preferred Securities and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equal aggregate stated principal amount of the applicable series of Junior Subordinated Debentures, and (iii) General Motors' obligations described herein to provide certain indemnities in respect of, and be responsible for, certain costs, expenses, debts and liabilities of each Trust under the Indenture and pursuant to the applicable Declaration, the Preferred Securities Guarantees issued by General Motors with respect to the Preferred Securities issued by such Trust, the Junior Subordinated Debentures purchased by such Trust, and the Indenture, taken together, constitute a full and unconditional guarantee of payments due on the Preferred Securities of such Trust. See "Description of Preferred Securities Guarantees" and "Description of the Junior Subordinated Debentures." Neither of the Trusts is currently subject to the information reporting requirements of the Exchange Act. Each Trust will become subject to such requirements upon the effectiveness of the Registration Statement, although each Trust intends to seek and expects to receive exemptions therefrom. 1 11 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Commission by General Motors pursuant to Section 13 of the Exchange Act are incorporated by reference in this Prospectus: (a) Annual Report on Form 10-K for the year ended December 31, 1996; (b) Current Reports on Form 8-K dated January 16, 1997, January 27, 1997, March 12, 1997 and April 14, 1997; (c) The description of the Series D 7.92% Preference Stock and the Series D 7.92% Depositary Shares contained in a Registration Statement on Form 8-A dated July 8, 1992, and any amendment or report filed for the purpose of updating such description; and (d) The description of the Series G 9.12% Preference Stock and the Series G 9.12% Depositary Shares contained in a Registration Statement on Form 8-A dated December 8, 1992, and any amendment or report filed for the purpose of updating such description. Such incorporation by reference shall not be deemed specifically to incorporate by reference the information referred to in Item 402(a)(8) of Regulation S-K. All documents filed by General Motors pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of this offering shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in this Prospectus or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or therein (or in any subsequently filed document that also is or is deemed to be incorporated by reference herein or therein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. General Motors will provide without charge to each person to whom a copy of this Prospectus has been delivered, upon the written or oral request of such person, a copy of any or all of the documents referred to above which have been or may be incorporated by reference herein (other than exhibits to such documents unless such exhibits are specifically incorporated by reference in such documents). Requests for such copies should be directed to General Motors Corporation, Room 11-243, GM Building, 3044 West Grand Boulevard, Detroit, Michigan 48202-3091 (Telephone Number (313) 556-2044). THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM GENERAL MOTORS CORPORATION, 3044 WEST GRAND BOULEVARD, DETROIT, MICHIGAN 48202-3091 ATTENTION: BOARD AND STOCKHOLDER RELATIONS PHONE: (313) 556-2044. IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY , 1997. 2 12 PROSPECTUS SUMMARY The following summary does not purport to be complete and is qualified in its entirety by the detailed information contained elsewhere in, or incorporated by reference in, this Prospectus. GENERAL MOTORS CORPORATION The major portion of General Motors' operations is derived from the automotive products industry, consisting of the design, manufacture, assembly and sale of automobiles, trucks and related parts and accessories. Primarily through its wholly owned subsidiaries, General Motors Acceptance Corporation and Hughes Electronics Corporation ("Hughes"), General Motors also provides services and manufactures products in other industry segments. On January 16, 1997, General Motors announced a series of planned transactions (the "Hughes Transactions") designed to address strategic challenges and unlock stockholder value in the three business segments of Hughes. The transactions would include the tax-free spin-off of the Hughes defense business to holders of $1 2/3 Common Stock and Class H Common Stock, followed immediately by the tax-free merger of that business with Raytheon Company. At the same time, Delco Electronics Corporation ("Delco"), the automotive electronics subsidiary of Hughes would be transferred from Hughes to General Motors' Delphi Automotive Systems unit. Finally, General Motors' Class H Common Stock would be recapitalized into a General Motors tracking stock linked to the telecommunications and space business of Hughes. General Motors' principal executive offices are located at 100 Renaissance Center, Detroit, Michigan 48243-7301 (Telephone Number (313) 556-5000). THE TRUSTS Each of the Series D Trust and the Series G Trust is a statutory business trust, in each case formed under Delaware law pursuant to (i) a declaration of trust, dated as of April 11, 1997, executed by General Motors, as sponsor (with respect to each Trust, the "Sponsor"), and the trustees of such Trust (with respect to each Trust, respectively, the "Trustees") and (ii) the filing of a certificate of trust with the Secretary of State of the State of Delaware on April 11, 1997. Each declaration will be amended and restated in its entirety (with respect to each Trust, as so amended and restated, the "Declaration") substantially in the form filed as an exhibit to the Registration Statement of which this Prospectus forms a part. Each Declaration will be qualified as an indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Upon issuance by each Trust of its Preferred Securities, the purchasers thereof will own all of the issued and outstanding Preferred Securities of such Trust. See "Description of the Preferred Securities--Book-Entry; Delivery and Form." The Trustees of the Series D Trust are sometimes referred to herein as the "Series D Trustees" and the Trustees of the Series G Trust are sometimes referred to herein as the "Series G Trustees." The Declaration of the Series D Trust is sometimes referred to herein as the "Series D Declaration" and the Declaration of the Series G Trust is sometimes referred to herein as the "Series G Declaration." General Motors will directly or indirectly acquire all of the Common Securities of each Trust, in each case in an aggregate liquidation amount equal to at least 3% of the total capital of such Trust. Each of the Trusts exists for the sole purpose of (i) issuing (a) its Preferred Securities in exchange for Depositary Shares validly tendered in its Offer and delivering such Depositary Shares to General Motors in consideration of the deposit by General Motors as trust assets of the related series of Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of its Preferred Securities, and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equal aggregate stated principal amount of the applicable series of Junior Subordinated Debentures and (ii) engaging in those other activities necessary or incidental thereto. Pursuant to each Declaration, the number of Trustees of each Trust will initially be five. Three of such Trustees (with respect to each Trust, the "Regular Trustees") will be persons who are employees or officers of, or who are affiliated with, General Motors. With respect to each Trust, the fourth trustee will be a financial institution that is unaffiliated with General Motors, which trustee will serve as institutional trustee under the 3 13 applicable Declaration and as indenture trustee for the purposes of compliance with the provisions of the Trust Indenture Act (with respect to each Trust, the "Institutional Trustee"). Initially, Wilmington Trust Company will be the Institutional Trustee for each of the Series D Trust and the Series G Trust, in each case until removed or replaced by the holder of the Common Securities of the applicable Trust. For purposes of compliance with the provisions of the Trust Indenture Act, Wilmington Trust Company will act as trustee (with respect to each Trust, the "Guarantee Trustee") under the applicable Preferred Securities Guarantee and as Debt Trustee (as defined herein) of each of the Series D Trust and the Series G Trust under the Indenture. With respect to each Trust, the fifth trustee will be an entity that maintains its principal place of business in the state of Delaware (with respect to each Trust, the "Delaware Trustee"). Initially, Wilmington Trust Company will act as Delaware Trustee for each such Trust. See "Description of the Preferred Securities Guarantees" and "Description of the Preferred Securities--Voting Rights" herein. The Institutional Trustee of each Trust will hold title to the Junior Subordinated Debentures purchased by such Trust for the benefit of the holders of the Trust Securities of such Trust and will have the power to exercise all rights, powers and privileges under the Indenture as the holder of such Junior Subordinated Debentures. In addition, the Institutional Trustee of each Trust will maintain exclusive control of a segregated non-interest bearing bank account (with respect to each Trust, the "Institutional Account") to hold all payments made in respect of the Junior Subordinated Debentures held by such Trust for the benefit of the holders of the Trust Securities of such Trust. The Institutional Trustee of each Trust will make payments of distributions and payments on liquidation, redemption and otherwise to the holders of the Trust Securities of such Trust out of funds from the Institutional Account for such Trust. The Guarantee Trustee of each Trust will hold the applicable Preferred Securities Guarantee for the benefit of the holders of the Preferred Securities of such Trust. General Motors, as the direct or indirect holder of all the Common Securities of each Trust, will have the right to appoint, remove or replace any Trustee of such Trust and to increase or decrease the number of Trustees of such Trust, subject to certain restrictions. General Motors will pay all fees and expenses related to each Trust and the offering of the Trust Securities of such Trust. See "Description of the Junior Subordinated Debentures--Miscellaneous." The rights of the holders of the Preferred Securities of each Trust, including economic rights, rights to information and voting rights, are set forth in the applicable Declaration, the Delaware Business Trust Act, as amended (the "Business Trust Act"), and the Trust Indenture Act. See "Description of the Preferred Securities." CERTAIN POTENTIAL BENEFITS AND RISKS TO INVESTORS Prospective investors should carefully review the information contained elsewhere in this Prospectus prior to making a decision regarding either or both of the Offers and should particularly consider the following matters: POTENTIAL BENEFITS TO EXCHANGING HOLDERS - The cash distributions rate on the Series D Preferred Securities will be basis points greater than the dividend rate on the Series D 7.92% Depositary Shares and the cash distributions rate on the Series G Preferred Securities will be basis points greater than the dividend rate on the Series G 9.12% Depositary Shares. However, unlike dividends paid on the Depositary Shares, cash distributions made on the Preferred Securities are not eligible for the dividends received deduction for corporate holders. See "Comparison of Preferred Securities and Depositary Shares." - Although the obligations of General Motors under the Junior Subordinated Debentures are unsecured and will be subordinated and junior in right of payment to all Senior Indebtedness and Other Financial Obligations of General Motors, they will rank pari passu with General Motors' other general unsecured creditors and will be senior to all capital stock of General Motors now or hereafter issued by General Motors (including the Preference Stock underlying the Depositary Shares). 4 14 - While no dividends are required to be paid with respect to the Depositary Shares, interest payments on the Junior Subordinated Debentures and therefore distributions on the related Preferred Securities may not be deferred for more than 20 consecutive quarterly interest periods. Moreover, during any such Extension Period, General Motors shall not (i) declare or pay any dividend on, make a distribution with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock (other than as set forth under "Description of the Preferred Securities--Distributions"), (ii) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. General Motors has no present intention of exercising its right to defer payments of interest on any of the Junior Subordinated Debentures. However, should General Motors determine to exercise such right in the future with respect to either series of Junior Subordinated Debentures, the market price of the related series of Preferred Securities is likely to be affected. In such event, because no payments on the other series of Junior Subordinated Debentures will be permitted, the market price of the other series of Preferred Securities is also likely to be affected. See "Description of the Preferred Securities." To date, General Motors has made each quarterly dividend payment with respect to the Depositary Shares on the applicable scheduled dividend payment dates, and dividends on the Preference Stocks accrue whether or not such dividends are declared. See "Description of the Preference Stocks and Depositary Shares--Preference Stocks--Dividends." - So long as payments of interest and other payments are made when due on a series of the Junior Subordinated Debentures, such payments will be sufficient to cover cash distributions and other payments made on the related series of Trust Securities because (i) the aggregate principal amount of Junior Subordinated Debentures deposited as trust assets in each Trust will be equal to the sum of (a) the aggregate stated liquidation amount of the Preferred Securities issued by such Trust in exchange for the Depositary Shares accepted by such Trust in its Offer and (b) the amount of proceeds received by such Trust from the issuance of its Common Securities to General Motors, which proceeds will be used by such Trust to purchase an equal principal amount of the applicable series of Junior Subordinated Debentures, (ii) the interest rate and interest and other payment dates on the Junior Subordinated Debentures held by each Trust will match the distribution rate and distribution and other payment dates for the Trust Securities issued by such Trust, (iii) the Declaration relating to each Trust provides that General Motors, as issuer of the Junior Subordinated Debentures held by such Trust, shall pay for all debts and obligations (other than payments of interest and principal with respect to the Trust Securities issued by such Trust) and all costs and expenses of such Trust, and (iv) the Declaration relating to each Trust further provides that the Trustees of such Trust shall not permit such Trust to, among other things, engage in any activity that is not consistent with the purposes of such Trust. See "The Trusts," "Description of the Preferred Securities," "Description of the Junior Subordinated Debentures" and "Relationship Between the Preferred Securities, the Junior Subordinated Debentures and the Preferred Securities Guarantees." - If a Declaration Event of Default (as defined herein) occurs and is continuing under the Declaration of a Trust, then the holders of Preferred Securities of such Trust would be able to rely on the enforcement by the applicable Institutional Trustee of its rights as a holder of the related series of Junior Subordinated Debentures against General Motors. In addition, the holders of a majority in liquidation amount of the Preferred Securities of such Trust will have the right to direct the time, method, and place of conducting any proceeding for any remedy available to such Institutional Trustee or (subject to the receipt of a tax opinion as described in "Description of the Preferred Securities--Voting Rights") to direct the exercise of any trust or power conferred upon such Institutional Trustee under the applicable Declaration, including the right to direct such Institutional Trustee to exercise the remedies available to it as a holder of such Junior Subordinated Debentures. If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures, a holder of the related Preferred Securities may institute a legal proceeding directly against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures 5 15 without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing, and such event is attributable to the failure of General Motors to pay interest or principal on the applicable series of Junior Subordinated Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a holder of the related Preferred Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on such Junior Subordinated Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder (each, a "Direct Action") on or after the respective due date specified in such Junior Subordinated Debentures. In connection with any such Direct Action, General Motors will be subrogated to the rights of such holder of Preferred Securities under the applicable Declaration to the extent of any payment made by General Motors to such holder of Preferred Securities in such Direct Action. The holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the related Junior Subordinated Debentures. See "Description of the Preferred Securities--Declaration Events of Default." POTENTIAL RISKS TO EXCHANGING HOLDERS - Participation in an Offer will be a taxable event for holders of Depositary Shares tendered in such Offer. See "Risk Factors and Special Considerations Relating to the Offers--Exchange of Depositary Shares for Preferred Securities is a Taxable Event." - Unlike dividends paid on the Depositary Shares, distributions made on the Preferred Securities are not eligible for the dividends received deduction for corporate holders. - The obligations of General Motors under the Junior Subordinated Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations of General Motors, and rank pari passu with General Motors' other general unsecured creditors. The obligations of General Motors under the Preferred Securities Guarantees are subordinate and junior in right of payment to all other liabilities of General Motors and rank pari passu with the most senior preferred stock issued, from time to time, if any, by General Motors. See "Risk Factors and Special Considerations Relating to the Offers--Ranking of Subordinated Obligations Under the Preferred Securities Guarantees and Junior Subordinated Debentures." - If General Motors were to default in its obligation to pay amounts payable on a series of the Junior Subordinated Debentures, the Trust holding such Junior Subordinated Debentures would lack available funds for the payment of distributions or amounts payable on redemption of its Preferred Securities or otherwise. In addition, the interest payment period on each series of the Junior Subordinated Debentures may be extended from time to time under certain circumstances by General Motors, in its sole discretion, for up to 20 consecutive quarters, such period not to extend beyond the applicable Stated Maturity. See "Risk Factors and Special Considerations Relating to the Offers--Ranking of Subordinated Obligations Under the Preferred Securities Guarantees and Junior Subordinated Debentures" and "--Options to Extend Interest Payment Periods." - Should General Motors not make interest or other payments on a series of the Junior Subordinated Debentures for any reason, including as a result of General Motors' election to defer payments of interest on such Junior Subordinated Debentures by extending the interest payment period thereon, the Trust holding such Junior Subordinated Debentures will not make distributions or other payments on its Trust Securities. In such event, holders of the Preferred Securities of such Trust would not be able to rely on the applicable Preferred Securities Guarantee since such Preferred Securities Guarantee covers distributions and other payments on such Preferred Securities only if and to the extent that General Motors has made a payment to such Trust of interest or principal on the Junior Subordinated Debentures deposited in such Trust as trust assets. See "Risk Factors and Special Considerations Relating to the Offers--Rights Under the Preferred Securities Guarantees." - If General Motors elects to defer payments of interest on a series of the Junior Subordinated Debentures by extending the interest period thereon, distributions on the related Trust Securities would also 6 16 be deferred but the Trust holding such Junior Subordinated Debentures would accrue income (as original issue discount ("OID")) in respect of such Junior Subordinated Debentures which would be taxable to beneficial owners of Trust Securities of such Trust. As a result, beneficial owners of Trust Securities of such Trust during an Extension Period would include their pro rata share of such deferred interest in gross income in advance of the receipt of cash. See "Risk Factors and Special Considerations Relating to the Offers--Options to Extend Interest Payment Periods." - Holders of Preferred Securities of a Trust have no voting rights other than as provided under the Business Trust Act or the Trust Indenture Act, except for certain enforcement rights against the Institutional Trustee and, in certain circumstances, against General Motors. Holders of Preferred Securities of a Trust will not be able to appoint, remove or replace, or to increase or decrease the number of, Trustees of the applicable Trust, which rights are vested exclusively in the Common Securities of such Trust. See "Risk Factors and Special Considerations Relating to the Offer--Limited Voting Rights" and "Description of the Preferred Securities--Voting Rights." Under the General Motors Certificate of Incorporation and the applicable Deposit Agreement (as defined herein), the Depositary Shares (and the underlying shares of Preference Stock) do not entitle holders thereof to voting rights, except (i) with respect to any amendment or alteration of any provision of the General Motors Certificate of Incorporation which would adversely affect the powers, preferences or special rights of the Depositary Shares (and the underlying shares of Preference Stock), which requires the prior approval of the holders of at least two-thirds of the outstanding Depositary Shares of the applicable series (and the underlying shares of Preference Stock), and (ii) in the event General Motors fails to pay accumulated preferential dividends on any series of General Motors Preference Stock (as defined herein) in full for any six quarterly dividend payment periods, whether or not consecutive, and all such dividends remain unpaid (as described below), or as required by law. With certain exceptions, in the event that General Motors fails to pay full accumulated preferential dividends on the shares of any series of General Motors Preference Stock, including the Series D 7.92% Preference Stock and the Series G 9.12% Preference Stock, in full for any six quarterly dividend payment periods, whether or not consecutive, and all such dividends remain unpaid (with respect to such series of General Motors Preference Stock, a "Preferential Dividend Default"), the number of directors of General Motors would be increased by two and the holders of the Depositary Shares representing the shares of such series of General Motors Preference Stock, together as a class with the holders of depositary shares representing all other series of General Motors Preference Stock ranking junior to or on a parity with such series of General Motors Preference Stock and then entitled to vote thereon, would be entitled to elect two directors of the expanded General Motors Board of Directors (the "General Motors Board") until the full dividends accumulated on all outstanding shares of such series of General Motors Preference Stock have been paid. See "Description of the Preference Stocks and Depositary Shares--Preference Stocks--Voting Rights." - The Series D 7.92% Depositary Shares and the underlying Series D 7.92% Preference Stock are redeemable at the option of General Motors on or after August 1, 1999, in whole or in part. The Series D Junior Subordinated Debentures, and as a result, the Series D Preferred Securities, are redeemable, in whole or in part, from time to time, on or after August 1, 1999, or, in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event. The Series G 9.12% Depositary Shares and the underlying Series G 9.12% Preference Stock are redeemable at the option of General Motors on or after January 1, 2001. The Series G Junior Subordinated Debentures, and as a result, the Series G Preferred Securities, are redeemable, in whole or in part, from time to time, on or after January 1, 2001, or, in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event. As a result, in the event of a Tax Event in respect of a Trust, the Preferred Securities of such Trust would become redeemable prior to the date on which Depositary Shares of the corresponding series are first redeemable. See "Risk Factors and Special Considerations Relating to the Offers--Proposed Tax Legislation." General Motors also will have the right at any time to shorten the maturity of the Series D Junior Subordinated Debentures to a date not earlier than August 1, 1999 and to shorten the maturity of the Series G Junior Subordinated Debentures to a date not earlier than January 1, 2001. - While application will be made to list each series of the Preferred Securities on the NYSE, each series of Preferred Securities is a new issue of securities with no established trading market. In addition, liquidity of 7 17 each series of the Preferred Securities will be affected by the number of Depositary Shares exchanged in the applicable Offer. See "Risk Factors and Special Considerations Relating to the Offers--Lack of Established Trading Market for Preferred Securities" and "--Reduced Trading Market for Depositary Shares." - General Motors will have the right at any time to liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of Trust Securities of such Trust. General Motors has no present intention to take such action with respect to either Trust. While General Motors will use its best efforts in such a situation to have such Junior Subordinated Debentures listed on the NYSE, there is no guarantee that such listing will take place or that a market will exist for such Junior Subordinated Debentures. See "Risk Factors and Special Considerations Relating to the Offers--Redemption or Distribution of the Junior Subordinated Debentures." POTENTIAL RISKS TO NON-EXCHANGING HOLDERS - The liquidity and trading market for untendered Depositary Shares could be adversely affected to the extent Depositary Shares are tendered and accepted in the Offers. See "Risk Factors and Special Considerations Relating to the Offers--Reduced Trading Market for Depositary Shares." - Following the applicable Expiration Date, and in accordance with and subject to applicable law, General Motors may from time to time acquire Depositary Shares of either or both series in the open market, by tender offer, subsequent exchange offer, redemption of the underlying Preference Stock or otherwise. To the extent that any such acquisition of Depositary Shares causes the number of outstanding Depositary Shares of a series to be less than 100,000, the NYSE may delist such Depositary Shares from the NYSE and the trading market for such outstanding Depositary Shares of such series could be adversely affected. General Motors does not believe that the Offers will cause any such delisting of either series of the Depositary Shares. However, General Motors' decision to make such acquisitions in the future is dependent on many factors, including market conditions in effect at the time of any contemplated acquisition. Accordingly, General Motors cannot predict whether and to what extent it will acquire any additional Depositary Shares and the consideration to be paid therefor. See "Risk Factors and Special Considerations Relating to the Offers--Reduced Trading Market for Depositary Shares." - The Junior Subordinated Debentures held by any Trust and the Preferred Securities Guarantee relating thereto will rank senior in right of payment to the untendered Depositary Shares with respect to each Offer. See "Risk Factors and Special Considerations Relating to the Offers--Ranking of Subordinated Obligations Under the Preferred Securities Guarantees and Junior Subordinated Debentures." THE OFFERS PURPOSE OF THE OFFERS The purpose of the Offers is to refinance the Depositary Shares with the Preferred Securities to restructure a portion of General Motors' outstanding equity while achieving competitive financing and certain tax efficiencies and preserving General Motors' flexibility with respect to future financings. The refinancings effected pursuant to the Offers will permit General Motors to deduct interest payable on the Junior Subordinated Debentures for United States federal income tax purposes. TERMS OF THE OFFERS Series D Offer. Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, the Series D Trust hereby offers to exchange its Series D Preferred Securities for up to 5,462,917 (i.e., approximately 90%) of the outstanding Series D 7.92% Depositary Shares not owned by General Motors. Series G Offer. Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, the Series G Trust hereby offers to exchange its 8 18 Series G Preferred Securities for up to 9,071,910 (i.e., approximately 90%) of the outstanding Series G 9.12% Depositary Shares not owned by General Motors. EACH OFFER IS INDEPENDENT FROM THE OTHER OFFER. EACH OFFER IS, HOWEVER, SUBJECT TO CERTAIN CONDITIONS, AS DESCRIBED HEREIN. Exchanges will be made on the basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange in the Series D Offer, and one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange in the Series G Offer. As of the date of this Prospectus, there are Series D 7.92% Depositary Shares outstanding and not owned by General Motors and Series G 9.12% Depositary Shares outstanding and not owned by General Motors. See "The Offers--Terms of the Offers." EXPIRATION DATES; WITHDRAWALS Series D Offer. Upon the terms and conditions of the Series D Offer, the Series D Trust will accept for exchange up to 5,462,917 Series D 7.92% Depositary Shares validly tendered and not withdrawn prior to 12:00 Midnight, Eastern time, on , , 1997, or if the Series D Offer is extended by the Series D Trust, in its sole discretion, the latest date and time to which the Series D Offer has been extended (the "Series D Expiration Date"). Series G Offer. Upon the terms and conditions of the Series G Offer, the Series G Trust will accept for exchange up to 9,071,910 Series G 9.12% Depositary Shares validly tendered and not withdrawn prior to 12:00 Midnight, Eastern time, on , , 1997, or if the Series G Offer is extended by the Series G Trust, in its sole discretion, the latest date and time to which the Series G Offer has been extended (the "Series G Expiration Date"). The Series D Expiration Date and the Series G Expiration Date are each an "Expiration Date" and together constitute the "Expiration Dates." Tenders of Depositary Shares pursuant to an Offer may be withdrawn at any time prior to the applicable Expiration Date and, unless accepted for exchange by the offering Trust, may be withdrawn at any time after 40 Business Days (as defined herein) after the date of this Prospectus. A "Business Day" shall mean any day other than Saturday, Sunday or any other day on which banking institutions in New York City (in the State of New York) or Wilmington, Delaware are permitted or required by any applicable law to close. See "The Offers--Expiration Date; Extensions; Amendments; Termination" and "--Withdrawal of Tenders." Tenders in each Offer must be made to the Exchange Agent in order to be valid. CONDITIONS TO THE OFFERS; EXTENSIONS; AMENDMENTS; TERMINATION Consummation of each Offer is conditioned on, among other things, tenders by a sufficient number of holders of Depositary Shares subject to such Offer to meet the Minimum Distribution Condition with respect to such Offer, which condition may not be waived. See "The Offers--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." Each of the Trusts expressly reserves the right with respect to its Offer, in its sole discretion, subject to applicable law, to (i) terminate its Offer, and not accept for exchange any Depositary Shares tendered in its Offer and promptly return such Depositary Shares, upon the failure of any condition specified above or under "The Offers--Conditions to the Offers," (ii) waive any condition to its Offer (other than the Minimum Distribution Condition) and accept all Depositary Shares previously tendered pursuant to its Offer, (iii) extend the Expiration Date of its Offer and retain all Depositary Shares tendered pursuant to its Offer until the Expiration Date for its Offer, subject, however, to all withdrawal rights of holders (see "The Offers--Withdrawal of Tenders"), (iv) amend the terms of its Offer, (v) modify the form of the consideration to be paid pursuant to its Offer, or (vi) not accept for exchange the Depositary Shares tendered pursuant to its Offer at any time on or prior to the Expiration Date for its Offer, for any reason. Any amendment applicable to an Offer will apply to all Depositary Shares tendered pursuant to such Offer. The minimum period during which an Offer must remain open following material changes in the terms of such Offer or the information 9 19 concerning such Offer, other than a change in the percentage of securities sought or the price, depends upon the facts and circumstances, including the relative materiality of such terms or information. See "The Offers --Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." PROCEDURES FOR TENDERING Each Holder of Depositary Shares wishing to participate in an Offer must (i) properly complete and sign the Letter of Transmittal relating to the series of Depositary Shares to be tendered in such Offer (or where appropriate, an Agent's Message (as defined herein) or a facsimile thereof (all references in this Prospectus to a Letter of Transmittal shall be deemed to include a facsimile thereof) in accordance with the instructions contained herein and in such Letter of Transmittal, together with any required signature guarantees, and deliver the same to The First National Bank of Boston, as Exchange Agent, at one of its addresses set forth on the back cover page hereof, prior to the applicable Expiration Date and either (a) certificates for the Depositary Shares being tendered in such Offer must be received by the Exchange Agent at such address or (b) such Depositary Shares must be transferred pursuant to the procedures for book-entry transfer described herein and a confirmation of such book-entry transfer must be received by the Exchange Agent, in each case prior to the applicable Expiration Date, or (ii) comply with the guaranteed delivery procedures described herein with respect to such Offer. See "The Offers--Procedures for Tendering." IN ORDER TO PARTICIPATE IN AN OFFER, HOLDERS OF DEPOSITARY SHARES MUST SUBMIT THE LETTER OF TRANSMITTAL RELATING TO THE SERIES OF DEPOSITARY SHARES TO BE TENDERED IN SUCH OFFER AND COMPLY WITH THE OTHER PROCEDURES FOR TENDERING SUCH DEPOSITARY SHARES IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE APPLICABLE LETTER OF TRANSMITTAL PRIOR TO THE APPLICABLE EXPIRATION DATE. THERE IS A SEPARATE LETTER OF TRANSMITTAL AND NOTICE OF GUARANTEED DELIVERY FOR EACH OFFER. LETTERS OF TRANSMITTAL, DEPOSITARY SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE AGENT--NOT TO GENERAL MOTORS, THE SERIES D TRUST, THE SERIES G TRUST, THE DEALER MANAGER OR THE INFORMATION AGENT. SPECIAL PROCEDURE FOR BENEFICIAL OWNERS Any beneficial owner whose Depositary Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender such Depositary Shares in an Offer should contact such registered Holder promptly and instruct such registered Holder to tender such Depositary Shares in the applicable Offer on such beneficial owner's behalf. If such beneficial owner wishes to tender such Depositary Shares in an Offer on its own behalf, such owner must, prior to completing and executing the Letter of Transmittal relating to the series of Depositary Shares to be tendered in such Offer and delivering its Depositary Shares to be tendered in such Offer, either make appropriate arrangements to register ownership of such Depositary Shares in such owner's name or obtain a properly completed stock power from the registered Holder. The transfer of registered ownership may take considerable time and may not be able to be completed prior to the applicable Expiration Date. See "The Offers--Procedures for Tendering--Special Procedures for Beneficial Owners." GUARANTEED DELIVERY PROCEDURES If a Holder desires to accept an Offer and time will not permit the Letter of Transmittal relating to the series of Depositary Shares to be tendered in such Offer or the Depositary Shares to be tendered in such Offer to reach the Exchange Agent before the applicable Expiration Date or the procedure for book-entry transfer cannot be completed on a timely basis, a tender with respect to such Offer may be effected in accordance with the guaranteed delivery procedures set forth in "The Offers--Procedures for Tendering--Guaranteed Delivery." THERE IS A SEPARATE NOTICE OF GUARANTEED DELIVERY FOR EACH OFFER. 10 20 ACCEPTANCE OF SHARES; PRORATION Upon the terms and subject to the conditions of its Offer, including the Minimum Distribution Condition, each Trust will accept for exchange up to the specified amount of the applicable series of Depositary Shares validly tendered and not withdrawn prior to the applicable Expiration Date. If more than the maximum number of Depositary Shares of either series is validly tendered and not withdrawn on or prior to the Expiration Date for the applicable Offer, the applicable Trust will accept (subject to the terms and conditions of its Offer) such related Depositary Shares for exchange on a pro rata basis as described herein. Each of the Trusts expressly reserves the right, in its sole discretion, to delay acceptance for exchange of Depositary Shares tendered under its Offer and the delivery of its Preferred Securities with respect to the Depositary Shares accepted for exchange in its Offer (subject to Rules 13e-4 and 14e-1 under the Exchange Act, which require that General Motors and such Trust consummate such Offer or return the Depositary Shares deposited by or on behalf of the holders thereof in connection with such Offer promptly after the termination or withdrawal of such Offer), or to amend, withdraw or terminate its Offer, at any time prior to the applicable Expiration Date for any of the reasons set forth in "The Offers--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." If more than the maximum number of Depositary Shares of either series is validly tendered and not withdrawn on or prior to the Expiration Date for the applicable Offer, the applicable Trust will accept (subject to the terms and conditions of its Offer) such related Depositary Shares for exchange in its Offer on a pro rata basis, subject to adjustment to avoid the distribution of fractional Preferred Securities. If proration of tendered Depositary Shares is required in an Offer, because of the difficulty in determining the number of Depositary Shares validly tendered (including shares tendered by the guaranteed delivery procedures described below in " --Procedures for Tendering"), each Trust expects that it would not be able to announce the final proration factor to commence the exchange for any Depositary Shares of the applicable series until approximately five Business Days after the applicable Expiration Date (the period between the applicable Expiration Date and the commencement of the exchange is referred to herein as a "Proration Period"). Preliminary results of the proration required in an Offer (if any) will be announced by press release as promptly as practicable after the applicable Expiration Date. Holders of Depositary Shares may also obtain such preliminary information from the Dealer Manager, the Information Agent or the Exchange Agent and may also be able to obtain such information from their brokers. If proration is required in an Offer, until the final proration factors regarding such Offer are known, the applicable Trust will not issue any Preferred Securities in exchange for Depositary Shares accepted for exchange in its Offer or return Depositary Shares delivered to the Exchange Agent but not tendered or return Depositary Shares tendered but not accepted for exchange because of proration. Such Trust will issue its Preferred Securities in exchange for Depositary Shares accepted for exchange in its Offer and return Depositary Shares delivered to the Exchange Agent but not tendered and return Depositary Shares tendered but not accepted for exchange because of proration as promptly as practicable following the Proration Period. If a Trust decides, in its sole discretion, to decrease the number of shares of Depositary Shares sought in its Offer or to increase or decrease the consideration offered to holders of Depositary Shares in its Offer, and if its Offer is scheduled to expire less than ten Business Days from and including the date that notice of such increase or decrease is first published, sent or given in the manner specified in "The Offers--Terms of the Offers" and "--Expiration Dates; Extensions; Amendments; Termination," then its Offer will remain open for a minimum of ten Business Days from and including the date of such notice. All Depositary Shares not accepted pursuant to an Offer, including shares not accepted because of proration, will be returned to the tendering holders at the expense of the offering Trust as promptly as practicable following the applicable Expiration Date or Proration Period (if applicable). DELIVERY OF PREFERRED SECURITIES Subject to the terms and conditions of each Offer, the delivery of the Preferred Securities to be issued pursuant to such Offer will occur as promptly as practicable following the applicable Expiration Date. See "The Offers--Terms of the Offer" and "--Expiration Dates; Extensions; Amendments; Termination." 11 21 DESCRIPTION OF PREFERRED SECURITIES AND JUNIOR SUBORDINATED DEBENTURES Series D Preferred Securities. The Series D Preferred Securities evidence undivided beneficial interests in the assets of the Series D Trust and will have terms equivalent to the Series D Common Securities, except that upon the occurrence and during the continuance of a Declaration Event of Default in respect of the Series D Junior Subordinated Debentures, the rights of the holders of the Series D Common Securities to receive payment of periodic distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Series D Preferred Securities. The Series D Declaration does not permit the issuance by the Series D Trust of any securities other than the Series D Trust Securities or the incurrence of any indebtedness by the Series D Trust. Pursuant to such Declaration, the Institutional Trustee of the Series D Trust will own the Series D Junior Subordinated Debentures purchased by the Series D Trust for the benefit of the holders of the Series D Trust Securities. The payment of distributions out of money held by the Series D Trust, and payments upon redemption of the Series D Preferred Securities or liquidation of the Series D Trust, are guaranteed by General Motors to the extent described under "Description of the Preferred Securities Guarantees." The Series D Declaration defines an event of default with respect to the Series D Trust Securities (a "Series D Declaration Event of Default") as the occurrence and continuance of an "event of default" under the Indenture relating to the Series D Junior Subordinated Debentures (a "Series D Indenture Event of Default"). Distributions on the Series D Preferred Securities will be fixed at a rate per annum of % of the stated liquidation amount of $25 per Series D Preferred Security. Distributions in arrears for more than one quarter will bear interest thereon at the rate of % per annum, compounded quarterly to the extent permitted by law. The term "distribution" as used herein includes any such interest payable unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. Distributions on the Series D Preferred Securities will be cumulative, will accrue from and including the Series D Accrual Date, and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing August 1, 1997, when, as and if available for payment. In addition, holders of Series D Preferred Securities will be entitled to an additional cash distribution at the rate of 7.92% per annum of the liquidation amount thereof from April 1, 1997 through and including the Series D Expiration Date in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series D 7.92% Depositary Shares accepted for exchange, such additional distribution to be made on August 1, 1997 to holders of the Series D Preferred Securities on the record date for such distribution. Series G Preferred Securities. The Series G Preferred Securities evidence undivided beneficial interests in the assets of the Series G Trust and will have terms equivalent to the Series G Common Securities, except that upon the occurrence and during the continuance of a Declaration Event of Default in respect of the Series G Junior Subordinated Debentures, the rights of the holders of the Series G Common Securities to receive payment of periodic distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Series G Preferred Securities. The Series G Declaration does not permit the issuance by the Series G Trust of any securities other than the Series G Trust Securities or the incurrence of any indebtedness by the Series G Trust. Pursuant to such Declaration, the Institutional Trustee of the Series G Trust will own the Series G Junior Subordinated Debentures purchased by the Series G Trust for the benefit of the holders of the Series G Trust Securities. The payment of distributions out of money held by the Series G Trust, and payments upon redemption of the Series G Preferred Securities or liquidation of the Series G Trust, are guaranteed by General Motors to the extent described under "Description of the Preferred Securities Guarantees." The Series G Declaration defines an event of default with respect to the Series G Trust Securities (a "Series G Declaration Event of Default") as the occurrence and continuance of an "event of default" under the Indenture relating to the Series G Junior Subordinated Debentures (a "Series G Indenture Event of Default"). The Series D Declaration Events of Default and the Series G Declaration Events of Default are each a "Declaration Event of Default" and together constitute "Declaration Events of Default." The Series D Indenture Events of Default and the Series G Indenture Events of Default are each an "Indenture Event of Default" and together constitute "Indenture Events of Default." Distributions on the Series G Preferred Securities will be fixed at a rate per annum of % of the stated liquidation amount of $25 per Series G Preferred Security. Distributions in arrears for more than one quarter 12 22 will bear interest thereon at the rate of % per annum, compounded quarterly to the extent permitted by law. The term "distribution" as used herein includes any such interest payable unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. Distributions on the Series G Preferred Securities will be cumulative, will accrue from and including the Series G Accrual Date, and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing August 1, 1997, when, as and if available for payment. In addition, holders of Series G Preferred Securities will be entitled to an additional cash distribution at the rate of 9.12% per annum of the liquidation amount thereof from April 1, 1997, through and including the Series G Expiration Date in lieu of dividends accumulating and unpaid from April 1, 1997, on their Series G 7.92% Depositary Shares accepted for exchange, such additional distribution to be made on August 1, 1997, to holders of the Series G Preferred Securities on the record date for such distribution. The distribution rate and the distribution and other payment dates for each series of Preferred Securities will correspond to the interest rate and the interest and other payment dates on the related series of Junior Subordinated Debentures deposited in the applicable Trust as trust assets. As a result, if principal or interest is not paid on a series of Junior Subordinated Debentures, including as a result of General Motors' election to extend the interest payment period on such Junior Subordinated Debentures as described below, the Trust holding such Junior Subordinated Debentures will not make payments on its Trust Securities. General Motors has the right under the Indenture to defer payments of interest on the related Junior Subordinated Debentures held by such Trust by extending the interest payment period from time to time on such Junior Subordinated Debentures, which, if exercised, would defer quarterly distributions on the related Preferred Securities (though such distributions would continue to accrue with interest since interest would continue to accrue on such Junior Subordinated Debentures) during any such Extension Period. Such right to extend the interest payment period for such Junior Subordinated Debentures is limited to a period not exceeding 20 consecutive quarters and such period may not extend beyond the Stated Maturity of such Junior Subordinated Debentures. In the event that General Motors exercises this right with respect to either series of Junior Subordinated Debentures, then General Motors shall not (i) declare or pay any dividend on, make a distribution with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock (other than (a) purchases or acquisitions of shares of common stock of General Motors (including, without limitation, the $1 2/3 Common Stock, the Class H Common Stock and any other class of common stock of General Motors now or hereafter issued and outstanding) (collectively, "General Motors Common Stock") in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors' capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors' capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (ii) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Prior to the termination of any such Extension Period, General Motors may further extend the interest payment period; provided, that such Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Stated Maturity of such Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, General Motors may select a new Extension Period, subject to the above requirements. If distributions are deferred with respect to a series of Preferred Securities, the deferred distributions and accrued interest thereon shall be paid to holders of record of such Preferred Securities as they appear on the books and records of the applicable Trust on the record date next 13 23 following the termination of such Extension Period. See "Risk Factors and Special Considerations Relating to the Offers," "--Rights Under the Preferred Securities Guarantees" and "--Options to Extend Interest Payment Periods" and "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Periods." If General Motors elects to defer payments of interest on a series of Junior Subordinated Debentures by extending the interest period thereon, distributions on the related Preferred Securities would also be deferred but the applicable Trust would accrue income (as OID) in respect of such Junior Subordinated Debentures which would be taxable to beneficial owners of the related Preferred Securities. As a result, beneficial owners of Preferred Securities during an Extension Period would include their pro rata share of such deferred interest in gross income in advance of the receipt of cash. See "Risk Factors and Special Considerations Relating to the Offers--Options to Extend Interest Payment Periods." If the Institutional Trustee of a Trust shall be the sole holder of the Junior Subordinated Debentures purchased by such Trust, General Motors shall give the Regular Trustees and the Institutional Trustee of such Trust notice of its selection of such Extension Period one Business Day prior to the earlier of (i) the date distributions on the Preferred Securities of such Trust are payable or (ii) the date the Regular Trustees of such Trust are required to give notice to the NYSE (or other applicable self-regulatory organization) or to holders of the Preferred Securities of such Trust of the record date or the date such distribution is payable. The Regular Trustees of such Trust shall give notice of General Motors' selection of such Extension Period to the holders of the Preferred Securities of such Trust. If such Institutional Trustee shall not be the sole holder of such Junior Subordinated Debentures, General Motors shall give the holders of such Junior Subordinated Debentures notice of its selection of such Extension Period ten Business Days prior to the earlier of (i) the applicable Interest Payment Date (as defined herein) or (ii) the date upon which General Motors is required to give notice to the NYSE (or other applicable self-regulatory organization) or to holders of such Junior Subordinated Debentures of the record or payment date of such related interest payment. See "Description of the Junior Subordinated Debentures--Options to Extend Interest Payment Periods." There will be deposited in each Trust as trust assets the applicable series of Junior Subordinated Debentures having an aggregate principal amount equal to the aggregate stated liquidation amount of (i) the Preferred Securities issued by such Trust in exchange for the Depositary Shares accepted in its Offer and (ii) the amount of proceeds received by such Trust from the sale of its Common Securities to General Motors. Distributions on the Trust Securities of a Trust must be paid on the dates payable to the extent that such Trust has funds available for the payment of such distributions in its Institutional Account. Each Trust's funds available for distribution to the holders of its Trust Securities will be limited to payments received from General Motors on the Junior Subordinated Debentures purchased by such Trust. See "Description of the Junior Subordinated Debentures." The payment of distributions out of moneys held by each Trust is guaranteed by General Motors on a subordinated basis as and to the extent set forth under "Description of the Preferred Securities Guarantees." Each Preferred Securities Guarantee covers distributions and other payments on the applicable series of Preferred Securities only if and to the extent that General Motors has made a payment to the applicable Trust of interest or principal on the Junior Subordinated Debentures deposited in such Trust as trust assets. Each Preferred Securities Guarantee, when taken together with General Motors' obligations under the applicable series of Junior Subordinated Debentures, the Indenture and the applicable Declaration, including its obligation (as issuer of the Junior Subordinated Debentures) to pay costs, expenses and certain liabilities of the Trust, constitutes a full and unconditional guarantee of amounts due on the applicable Preferred Securities. Subject to General Motors' right to redeem the Series D Junior Subordinated Debentures upon the occurrence of a Tax Event as described below, the Series D Junior Subordinated Debentures will mature on , 2012, which date may be shortened to a date not earlier than August 1, 1999 as provided herein. Moreover, the Series D Junior Subordinated Debentures are redeemable, in whole or in part, at any time on or after August 1, 1999, or in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event. See "Description of the Junior Subordinated Debentures." Upon the repayment of the Series D Junior Subordinated Debentures, whether at maturity or upon redemption, the proceeds from such repayment or payment shall simultaneously be applied to redeem Series D Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Junior Subordinated Debentures so repaid or 14 24 redeemed at the applicable Series D Redemption Price; provided, that holders of Series D Trust Securities shall be given not less than 30 nor more than 60 days notice of such redemption. As a result, in the event of a Tax Event in respect of the Series D Trust, the Series D Preferred Securities would become redeemable prior to the date on which the Series D 7.92% Depositary Shares are first redeemable. See "Description of the Junior Subordinated Debentures--Optional Redemptions." In the event that fewer than all of the outstanding Series D Preferred Securities are to be redeemed, the Series D Preferred Securities will be redeemed pro rata as described under "Description of Preferred Securities--Book-Entry; Delivery and Form." Subject to General Motors' right to redeem the Series G Junior Subordinated Debentures upon the occurrence of a Tax Event as described below, the Series G Junior Subordinated Debentures will mature on , 2012, which date may be shortened to a date not earlier than January 1, 2001 as provided herein. Moreover, the Series G Junior Subordinated Debentures are redeemable, in whole or in part, at any time on or after January 1, 2001, or in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event. See "Description of the Junior Subordinated Debentures." Upon the repayment of the Series G Junior Subordinated Debentures, whether at maturity or upon redemption, the proceeds from such repayment or payment shall simultaneously be applied to redeem Series G Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Junior Subordinated Debentures so repaid or redeemed at the applicable Series G Redemption Price; provided, that holders of Series G Trust Securities shall be given not less than 30 nor more than 60 days notice of such redemption. As a result, in the event of a Tax Event in respect of the Series G Trust, the Series G Preferred Securities would become redeemable prior to the date on which the Series G 9.12% Depositary Shares are first redeemable. See "Description of the Junior Subordinated Debentures--Optional Redemptions." In the event that fewer than all of the outstanding Series G Preferred Securities are to be redeemed, the Series G Preferred Securities will be redeemed pro rata as described under "Description of Preferred Securities--Book-Entry; Delivery and Form." If, at any time, a Tax Event in respect of a Trust shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to the holders of the applicable Junior Subordinated Debentures, at its option, to redeem the Junior Subordinated Debentures held by such Trust, in whole (but not in part), for cash within 90 days following the occurrence of such Tax Event at the applicable Tax Event Prepayment Price. Following such redemption, all Trust Securities of the applicable Trust shall be redeemed by such Trust at the applicable Tax Event Redemption Price. A "Tax Event" means, with respect to a Trust, that the Regular Trustees of such Trust shall have received an opinion of nationally recognized independent tax counsel experienced in such matters to the effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or such pronouncement or decision is announced on or after the date of original issuance of the Junior Subordinated Debentures purchased by such Trust, there is more than an insubstantial risk that (i) such Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income received or accrued on such Junior Subordinated Debentures, (ii) interest payable by General Motors on such Junior Subordinated Debentures is not, or within 90 days of the date of such opinion will not be, deductible by General Motors, in whole or in part, for United States federal income tax purposes, or (iii) such Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. See "Description of the Preferred Securities--Tax Event Redemptions or Distributions." General Motors will have the right at any time to liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of the Trust Securities of such Trust. If such Junior Subordinated Debentures are distributed to the holders of the Preferred Securities of such Trust, General Motors will use its best efforts to have such Junior Subordinated Debentures listed on the NYSE or on such other exchange as such Preferred Securities are then listed. General Motors has no current intention to cause the distribution of either the Series D Junior Subordinated Debentures or the Series G Junior 15 25 Subordinated Debentures. See "Description of the Preferred Securities--Tax Event Redemptions or Distributions" and "Description of the Junior Subordinated Debentures." The Series D Junior Subordinated Debentures will be issued pursuant to a supplement (the "Series D Supplement") to the Indenture, dated as of , 1997 (the "Indenture"), between General Motors and Wilmington Trust Company as Trustee (the "Debt Trustee"). See "Description of the Junior Subordinated Debentures." The Series D Junior Subordinated Debentures will bear interest at an annual rate of %. Interest will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 1997; provided that, as described above, so long as General Motors shall not be in default in the payment of interest on the Series D Junior Subordinated Debentures, General Motors shall have the right to extend the interest payment period from time to time for a period not exceeding 20 consecutive quarterly interest periods, provided that an Extension Period may not extend beyond the Stated Maturity of the Series D Junior Subordinated Debentures. General Motors has no current intention of exercising its right to extend an interest payment period. However, should General Motors determine to exercise such right in the future, the market price of the Series D Preferred Securities is likely to be affected. Moreover, since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Accordingly, the market price of the Series G Preferred Securities is also likely to be affected in the event that General Motors determines to exercise such right in the future. See "Risk Factors and Special Considerations Relating to the Offers" and "Description of the Junior Subordinated Debentures--Option to Extend Interest Payment Period." The Series D Junior Subordinated Debentures will also accrue interest at the rate of 7.92% per annum of the principal amount thereof from April 1, 1997 through and including the Series D Expiration Date, payable on August 1, 1997 to holders of the Series D Junior Subordinated Debentures on the record date for such distribution. No deferral of interest will be permitted with respect to interest accruing from April 1, 1997 through the Series D Expiration Date. The Series G Junior Subordinated Debentures will be issued pursuant to a supplement (the "Series G Supplement") to the Indenture. See "Description of the Junior Subordinated Debentures." The Series G Junior Subordinated Debentures will bear interest at an annual rate of %. Interest will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 1997; provided that, as described above, so long as General Motors shall not be in default in the payment of interest on the Series G Junior Subordinated Debentures, General Motors shall have the right to extend the interest payment period from time to time for a period not exceeding 20 consecutive quarterly interest periods, provided that an Extension Period may not extend beyond the Stated Maturity of the Series G Junior Subordinated Debentures. General Motors has no current intention of exercising its right to extend an interest payment period. However, should General Motors determine to exercise such right in the future, the market price of the Series G Preferred Securities is likely to be affected. Moreover, since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Accordingly, the market price of the Series D Preferred Securities is also likely to be affected in the event that General Motors determines to exercise such right in the future. See "Risk Factors and Special Considerations Relating to the Offers" and "Description of the Junior Subordinated Debentures--Option to Extend Interest Payment Period." The Series G Junior Subordinated Debentures will also accrue interest at the rate of 9.12% per annum of the principal amount thereof from April 1, 1997 through and including the Series G Expiration Date, payable on August 1, 1997 to holders of the Series G Junior Subordinated Debentures on the record date for such distribution. No deferral of interest will be permitted with respect to interest accruing from April 1, 1997 through the Series G Expiration Date. The obligations of General Motors under the Junior Subordinated Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations of General 16 26 Motors and rank pari passu with obligations to or rights of General Motors' other general unsecured creditors. No payment may be made of the principal of, premium, if any, or interest on the Junior Subordinated Debentures of either series, or in respect of any redemption, retirement, purchase or other acquisition of such of the Junior Subordinated Debentures, at any time when (i) there is a default in the payment of the principal of, premium, if any, interest on or otherwise in respect of any Senior Indebtedness, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, or (ii) any event of default with respect to any Senior Indebtedness has occurred and is continuing, pursuant to which the holders of such Senior Indebtedness (or a trustee on behalf of the holders thereof) have accelerated the maturity thereof. There are no terms in the Preferred Securities, the Junior Subordinated Debentures or the Preferred Securities Guarantees that limit General Motors' ability to incur additional indebtedness, including indebtedness which ranks senior to the Junior Subordinated Debentures and the Preferred Securities Guarantees. See "Description of the Preferred Securities Guarantees--Status of the Preferred Securities Guarantees" and "Description of the Junior Subordinated Debentures--Subordination." CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS The exchange of Depositary Shares for Preferred Securities pursuant to an Offer will be a taxable event. Gain or loss generally will be recognized in an amount equal to the difference between the fair market value of the Preferred Securities received, measured on the date on which the Depositary Shares are exchanged for such Preferred Securities pursuant to an Offer (the "Exchange Date"), and the exchanging holder's tax basis in the Depositary Shares surrendered in such Offer. See "United States Federal Income Taxation--Exchange of Depositary Shares for Preferred Securities." Unlike dividends paid on Depositary Shares, distributions made on the Preferred Securities are not eligible for the dividends received deduction for corporate holders. The Preferred Securities may trade at a price that does not accurately reflect the value of accrued but unpaid interest with respect to the underlying Junior Subordinated Debentures. A holder who uses the accrual method of accounting for tax purposes (and a cash method holder, if the Junior Subordinated Debentures are deemed to have been issued with OID) and who disposes of his Preferred Securities between record dates for payments of distributions thereon will be required to include accrued but unpaid interest on the Junior Subordinated Debentures through the date of disposition in income as ordinary income (i.e., interest or, possibly, OID), and to add such amount to his adjusted tax basis in his pro rata share of the underlying Junior Subordinated Debentures deemed disposed of. To the extent the selling price is less than the holder's adjusted tax basis (which will include all accrued but unpaid interest), a holder will recognize a capital loss. Subject to certain limited exceptions, capital losses cannot be applied to offset ordinary income for United States federal income tax purposes. If the issue price of Preferred Securities received by a holder exceeds the liquidation amount of such Preferred Securities, such excess will be treated as "amortizable bond premium." A holder which receives Preferred Securities with amortizable bond premium may elect to deduct such amortizable bond premium and such deduction shall be applied against (and operate to reduce) the amount of interest (or OID) taxable as ordinary income on such Preferred Securities. A holder receiving Preferred Securities with amortizable bond premium should consult its tax advisor with respect to the manner of making such election. ACCOUNTING FOR EXCHANGES The refinancings of the Preference Stocks with the Preferred Securities will decrease General Motors' stockholders' equity and may increase or decrease earnings applicable to common stockholders depending upon the difference between the carrying value of the Preference Stocks represented by the Depositary Shares accepted in the exchange and the fair market value of the Preferred Securities at the time of the exchange. The financial statements of each Trust will be consolidated into General Motors' consolidated financial statements, with the Preferred Securities treated and disclosed as minority interest and shown in General Motors' consolidated financial statements and described in the notes thereto as "General Motors-obligated mandatorily redeemable preferred securities of subsidiaries holding solely junior subordinated debentures of 17 27 General Motors." The notes to the financial statements of General Motors will also reflect that the sole assets of each Trust will be the Junior Subordinated Debentures purchased by such Trust. See "Capitalization" and "Accounting Treatment." Holders of Depositary Shares who do not tender their Depositary Shares in the Offers or whose Depositary Shares are not accepted for exchange will continue to hold such Depositary Shares and will be entitled to all the rights and preferences, and will be subject to all of the limitations, applicable thereto. To the extent that Depositary Shares are tendered and accepted in the Offers, the terms on which untendered Depositary Shares could subsequently be sold could be adversely affected. See "Risk Factors and Special Considerations Relating to the Offers--Reduced Trading Market for Depositary Shares." EXCHANGE AGENT AND INFORMATION AGENT The First National Bank of Boston has been appointed as Exchange Agent in connection with the Offers. Questions and requests for assistance, requests for additional copies of this Prospectus or a Letter of Transmittal relating to the series of Depositary Shares to be tendered in either Offer and requests for Notices of Guaranteed Delivery relating to either Offer should be directed to Georgeson & Company Inc. which has been retained by General Motors and the Trusts to act as Information Agent for the Offers. The addresses and telephone numbers of the Exchange Agent and the Information Agent are set forth in "--Exchange Agent and Information Agent" and on the outside back cover of this Prospectus. DEALER MANAGER Merrill Lynch, Pierce, Fenner & Smith Incorporated has been retained as Dealer Manager in connection with the Offers. For information regarding fees payable to the Dealer Manager and Soliciting Dealers, see "The Offers--Dealer Manager; Soliciting Dealers." 18 28 RISK FACTORS AND SPECIAL CONSIDERATIONS RELATING TO THE OFFERS Prospective exchanging holders of Depositary Shares who plan to participate in either or both of the Offers should carefully consider, in addition to the other information set forth elsewhere in this Prospectus, the following: EXCHANGE OF DEPOSITARY SHARES FOR PREFERRED SECURITIES IS A TAXABLE EVENT The exchange of Depositary Shares for Preferred Securities pursuant to an Offer will be a taxable event for the holder of such Depositary Shares. Generally, gain or loss will be recognized in an amount equal to the difference between the fair market value on the applicable Exchange Date of the holder's pro rata share of the underlying Junior Subordinated Debentures represented by the Preferred Securities received in such exchange and the exchanging holder's tax basis in the Depositary Shares exchanged therefor. See "United States Federal Income Taxation--Exchange of Depositary Shares for Preferred Securities." All holders of Depositary Shares are advised to consult their tax advisors regarding the United States federal, state, local and foreign tax consequences of the exchange of Depositary Shares and the issuance of Preferred Securities. See "Price Ranges of Depositary Shares." CORPORATE HOLDERS OF PREFERRED SECURITIES NOT ENTITLED TO DIVIDENDS RECEIVED DEDUCTION Unlike dividends paid on Depositary Shares, distributions on the Preferred Securities are not eligible for the dividends received deduction for corporate holders. RANKING OF SUBORDINATED OBLIGATIONS UNDER THE PREFERRED SECURITIES GUARANTEES AND JUNIOR SUBORDINATED DEBENTURES General Motors' obligations under the Preferred Securities Guarantees are subordinate and junior in right of payment to all liabilities of General Motors and rank pari passu with the most senior preferred stock issued, if any, from time to time by General Motors. The obligations of General Motors under the Junior Subordinated Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations of General Motors and rank pari passu with obligations to or rights of General Motors' other general unsecured creditors. No payment may be made of the principal of, premium, if any, or interest on the Junior Subordinated Debentures, or in respect of any redemption, retirement, purchase or other acquisition of any of the Junior Subordinated Debentures, at any time when (i) there is a default in the payment of the principal of, premium, if any, interest on or otherwise in respect of any Senior Indebtedness, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, or (ii) any event of default with respect to any Senior Indebtedness has occurred and is continuing, pursuant to which the holders of such Senior Indebtedness (or a trustee on behalf of the holders thereof) have accelerated the maturity thereof. There are no terms in the Preferred Securities, the Junior Subordinated Debentures or the Preferred Securities Guarantee that limit General Motors' ability to incur additional indebtedness, including indebtedness which ranks senior to the Junior Subordinated Debentures and the Preferred Securities Guarantees. See "Description of the Preferred Securities Guarantees--Status of the Preferred Securities Guarantees" and "Description of the Junior Subordinated Debentures--Subordination." RIGHTS UNDER THE PREFERRED SECURITIES GUARANTEES Each of the Preferred Securities Guarantees will be qualified as an indenture under the Trust Indenture Act. Wilmington Trust Company will act as Guarantee Trustee for each Preferred Securities Guarantee for the purposes of compliance with the provisions of the Trust Indenture Act. The Guarantee Trustee will hold each Preferred Securities Guarantee for the benefit of the holders of the Preferred Securities to which such Preferred Securities Guarantee relates. Each Preferred Securities Guarantee guarantees to the holders of the Preferred Securities to which such Preferred Securities Guarantee relates the payment of (i) any accrued and unpaid distributions that are required to be paid on such Preferred Securities, to the extent the applicable Trust has funds available 19 29 therefor, (ii) the applicable Redemption Price, including all accrued and unpaid distributions with respect to Preferred Securities called for redemption by such Trust, to the extent such Trust has funds available therefor, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of such Trust (other than in connection with the distribution of the related Junior Subordinated Debentures to the holders of such Preferred Securities or a redemption of all the Preferred Securities of such Trust), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on such Preferred Securities to the date of the payment to the extent the applicable Trust has funds available therefor or (b) the amount of assets of such Trust remaining available for distribution to holders of such Preferred Securities in liquidation of such Trust. The holders of a majority in liquidation amount of a series of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Guarantee Trustee or to direct the exercise of any trust or power conferred upon such Guarantee Trustee under the applicable Preferred Securities Guarantee. Notwithstanding the foregoing, any holder of Preferred Securities may institute a legal proceeding directly against General Motors to enforce such holder's rights under the applicable Preferred Securities Guarantee without first instituting a legal proceeding against the applicable Trust, the applicable Guarantee Trustee or any other person or entity. If General Motors were to default on its obligation to pay amounts payable on a series of the Junior Subordinated Debentures held by any Trust or otherwise, the applicable Trust would lack available funds for the payment of distributions or amounts payable on redemption of its Preferred Securities or otherwise, and, in such event, holders of the Preferred Securities of such Trust would not be able to rely upon the Preferred Securities Guarantee relating to such Preferred Securities for payment of such amounts. Instead, holders of such Preferred Securities would rely on the enforcement (i) by the applicable Institutional Trustee of its rights as registered holder of the Junior Subordinated Debentures purchased by such Trust against General Motors pursuant to the terms of such Junior Subordinated Debentures or (ii) by such holder of its right against General Motors to enforce payments on such Junior Subordinated Debentures. See "Description of the Preferred Securities Guarantees" and "Description of the Junior Subordinated Debentures." Each Declaration provides that each holder of Preferred Securities, by acceptance thereof, agrees to the provisions of the applicable Preferred Securities Guarantee, including the subordination provisions thereof, and the Indenture. ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES If a Declaration Event of Default with respect to a series of Junior Subordinated Debentures occurs and is continuing, then the holders of the related series of Preferred Securities would rely on the enforcement by the applicable Institutional Trustee of its rights as a holder of such Junior Subordinated Debentures against General Motors. In addition, the holders of a majority in liquidation amount of the Preferred Securities of a Trust will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Institutional Trustee or (subject to the receipt of a tax opinion as described in "Description of the Preferred Securities--Voting Rights") to direct the exercise of any trust or power conferred upon such Institutional Trustee under the applicable Declaration, including the right to direct such Institutional Trustee to exercise the remedies available to it as a holder of such Junior Subordinated Debentures. If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures, a holder of the related Preferred Securities may institute a legal proceeding directly against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default with respect to a series of Junior Subordinated Debentures has occurred and is continuing, and such event is attributable to the failure of General Motors to pay interest or principal on such Junior Subordinated Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a holder of the related series of Preferred Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on such Junior Subordinated Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder (each, a "Direct Action") on or after the respective due date specified in the applicable series of Junior Subordinated Debentures. In connection with any such Direct Action, the right of General Motors, as holder of the related Common Securities, will be subrogated to the rights of such holder of Preferred Securities under the applicable 20 30 Declaration to the extent of any payment made by General Motors to such holder of Preferred Securities in such Direct Action. The holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Junior Subordinated Debentures. See "Description of the Preferred Securities--Declaration Events of Default." OPTIONS TO EXTEND INTEREST PAYMENT PERIODS General Motors has the right under the Indenture to defer payments of interest on either or both series of Junior Subordinated Debentures by extending the interest payment period at any time, and from time to time, on such Junior Subordinated Debentures. As a consequence of such an extension, quarterly distributions on the related Preferred Securities would be deferred (but would continue to accrue, despite such deferral, with interest thereon compounded quarterly) by the applicable Trust during such Extension Period. Such right to extend the interest payment period for such Junior Subordinated Debentures is limited to a period not exceeding 20 consecutive quarters, but no such Extension Period may extend beyond the Stated Maturity of such Junior Subordinated Debentures. During any Extension Period, General Motors shall not (i) declare or pay any dividend on, or make a distribution with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock (other than (a) purchases or acquisitions of shares of General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors' capital stock or the exchange or conversion of one class or series of General Motors' capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors' capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (ii) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Prior to the termination of any such Extension Period, General Motors may further extend the interest payment period; provided, that such Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Stated Maturity of such Junior Subordinated Debentures. Upon the termination of an Extension Period and the payment of all amounts then due, General Motors may commence a new Extension Period with respect to such Junior Subordinated Debentures, subject to the above requirements. See "Description of the Preferred Securities--Distributions" and "Description of the Junior Subordinated Debentures--Options to Extend Interest Payment Periods." Should General Motors exercise its right to defer payments of interest by extending the interest payment period relating to a series of Preferred Securities, each holder of such Preferred Securities will be required to accrue income (as OID) in respect of the deferred stated interest allocable to its Preferred Securities for United States federal income tax purposes, which will be allocated but not distributed to holders of record of Preferred Securities. As a result, each such holder of Preferred Securities will recognize income relating to such deferred interest for United States federal income tax purposes in advance of the receipt of cash and will not receive from the applicable Trust the cash related to such income if such holder disposes of its Preferred Securities prior to the record date for the date on which distributions of such amounts are made. General Motors has no current intention of exercising its right to defer payments of interest by extending the interest payment period on either series of the Junior Subordinated Debentures. However, should General Motors determine to exercise such right in the future, the market price of the applicable Preferred Securities is likely to be affected. Moreover, since both series of the Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Accordingly, the market price of the 21 31 other series of the Preferred Securities is also likely to be affected in the event that General Motors determines to exercise such right in the future. A holder that disposes of its Preferred Securities during an Extension Period, therefore, might not receive the same return on its investment as a holder that continues to hold its Preferred Securities. In addition, as a result of the existence of General Motors' right to defer interest payments, the market price of the Preferred Securities (which represent an undivided beneficial interest in the underlying Junior Subordinated Debentures) may be more volatile than other securities on which OID accrues that do not have such rights. See "United States Federal Income Taxation--Sales of Preferred Securities." PROPOSED TAX LEGISLATION On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget Proposal, the United States Treasury Department proposed legislation that would, among other things, deny an issuer a deduction for United States federal income tax purposes for the payment of interest on instruments with characteristics similar to the Junior Subordinated Debentures. If the proposed legislation were enacted in its current form, it is not expected to apply to the Junior Subordinated Debentures since the proposed effective date for this provision is the date of first committee action. There can be no assurances, however, that the proposed legislation, if enacted, or similar legislation enacted after the date hereof would not adversely affect the tax treatment of the Junior Subordinated Debentures, resulting in a Tax Event in respect of either or both Trusts, which would permit General Motors to cause a redemption of the Preferred Securities at the applicable Tax Event Redemption Price by electing to prepay the Junior Subordinated Debentures at the applicable Tax Event Prepayment Price. See "Description of the Preferred Securities--Tax Event Redemptions" and "United States Federal Income Taxation." DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBENTURES General Motors will have the right at any time to terminate each Trust and, after satisfaction of claims of creditors as provided by applicable law, to cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of the Trust Securities of such Trust. General Motors has no present intention to take such action with respect to either Trust. Under current United States federal income tax law, a distribution of a series of Junior Subordinated Debentures upon the dissolution of the Trust holding such Junior Subordinated Debentures would not be a taxable event to holders of the related Preferred Securities. There can be no assurance as to the market prices for the Preferred Securities of either Trust or the related Junior Subordinated Debentures that may be distributed in exchange for such Preferred Securities if a dissolution or liquidation of such Trust were to occur. Accordingly, the Preferred Securities or the Junior Subordinated Debentures may trade at a discount to the price that the investor paid to purchase the Preferred Securities offered hereby pursuant to the Offers. Because holders of Preferred Securities may receive the underlying Junior Subordinated Debentures, prospective exchanging holders are also making an investment decision with regard to such Junior Subordinated Debentures and should carefully review all the information regarding such Subordinated Debentures contained herein. See "Description of the Preferred Securities--Tax Event Redemptions" and "Description of the Junior Subordinated Debentures--General." EARLY PAYMENT ON THE JUNIOR SUBORDINATED DEBENTURES AND THE TRUST SECURITIES The Series D 7.92% Depositary Shares and the underlying Series D 7.92% Preference Stock are redeemable at the option of General Motors on or after August 1, 1999, in whole or in part. The Series D Junior Subordinated Debentures are redeemable, in whole or in part, from time to time, on or after August 1, 1999, or, in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event in respect of the Series D Trust. General Motors also has the right at any time to shorten the Series D Stated Maturity to a date not earlier than August 1, 1999. Upon any repayment of the Series D Junior Subordinated Debentures prior to the Series D Stated Maturity, whether upon redemption or payment upon maturity, the Series D Trust will apply the proceeds thereof to redeem its Trust Securities in an aggregate liquidation amount equal to the aggregate principal amount so redeemed or paid. Accordingly, it is possible that the Series D Preferred Securities may be redeemed prior to the Series D Stated Maturity and, upon the occurrence of a Tax Event in 22 32 respect of the Series D Trust, prior to the date on which the Series D 7.92% Depositary Shares and the underlying Series D 7.92% Preference Stock are first redeemable. Moreover, upon the occurrence of a Tax Event in respect of the Series D Trust, a dissolution of the Series D Trust in which holders of the Series D Preferred Securities received cash would be a taxable event to such holders. See "United States Federal Income Taxation--Receipt of Junior Subordinated Debentures or Cash Upon Liquidation of the Trusts." The Series G 9.12% Depositary Shares and the underlying Series G 9.12% Preference Stock are redeemable at the option of General Motors on or after January 1, 2001. The Series G Junior Subordinated Debentures are redeemable, in whole or in part, from time to time, on or after January 1, 2001, or, in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event in respect of the Series G Trust. General Motors also has the right at any time to shorten the Series G Stated Maturity to a date not earlier than January 1, 2001. Upon any repayment of the Series G Junior Subordinated Debentures prior to the Series G Stated Maturity, whether upon redemption or payment upon maturity, the Series G Trust will apply the proceeds thereof to redeem its Trust Securities in an aggregate liquidation amount equal to the aggregate principal amount so redeemed or paid. Accordingly, it is possible that the Series G Preferred Securities may be redeemed prior to the Series G Stated Maturity and, upon the occurrence of a Tax Event in respect of the Series G Trust, prior to the date on which the Series G 9.12% Depositary Shares and the underlying Series G 9.12% Preference Stock are first redeemable. Moreover, upon the occurrence of a Tax Event in respect of the Series G Trust, a dissolution of the Series G Trust in which holders of the Series G Preferred Securities received cash would be a taxable event to such holders. See "United States Federal Income Taxation--Receipt of Junior Subordinated Debentures or Cash Upon Liquidation of the Trusts." LIMITED VOTING RIGHTS Holders of Preferred Securities of a Trust have no voting rights other than as provided under the Business Trust Act or the Trust Indenture Act, except for certain enforcement rights against the Institutional Trustee and, in certain circumstances, against General Motors. Holders of Preferred Securities of a Trust will not be entitled to vote to appoint, remove or replace, or to increase or decrease the number of, Trustees for such Trust, which voting rights are vested exclusively in the holder of the Common Securities of such Trust. See "Description of the Preferred Securities--Voting Rights." General Motors will be the holder of the Common Securities of each Trust. TRADING PRICES The Preferred Securities may trade at a price that does not fully reflect the value of accrued but unpaid interest with respect to the underlying Junior Subordinated Debentures. A holder who uses the accrual method of accounting for tax purposes (and a cash method holder, if such Junior Subordinated Debentures are deemed to have been issued with OID) and who disposes of his Preferred Securities between record dates for payments of distributions thereon will be required to include accrued but unpaid interest on such Junior Subordinated Debentures through the date of disposition in income as ordinary income (i.e., interest or, possibly, OID), and to add such amount to his adjusted tax basis in his pro rata share of the underlying Junior Subordinated Debentures deemed disposed of. To the extent the selling price is less than the holder's adjusted tax basis (which will include all accrued but unpaid interest), a holder will recognize a capital loss. Subject to certain limited exceptions, capital losses cannot be applied to offset ordinary income for United States federal income tax purposes. See "United States Federal Income Taxation--Interest Income and Original Issue Discount" and "--Sales of Preferred Securities." CONSEQUENCES OF HIGHLY LEVERAGED TRANSACTION The Indenture as it relates to a Trust does not contain provisions that afford holders of the Junior Subordinated Debentures purchased by such Trust protection in the event of a highly leveraged transaction, including a change of control, or other similar transactions involving General Motors that may adversely affect such holders. See "Description of the Junior Subordinated Debentures--General." 23 33 LACK OF ESTABLISHED TRADING MARKET FOR PREFERRED SECURITIES Each of the Series D Preferred Securities and the Series G Preferred Securities constitutes a new issue of securities of the applicable Trust with no established trading market. While application will be made to list each series of the Preferred Securities on the NYSE, there can be no assurance that an active market for either series of the Preferred Securities will develop or be sustained in the future on such exchange. Although the Dealer Manager has indicated to General Motors and each Trust that it intends to make a market in the applicable series of the Preferred Securities following the applicable Expiration Date, as permitted by applicable laws and regulations prior to the commencement of trading on the NYSE, it is not obligated to do so and may discontinue any such market-making at any time without notice. Accordingly, no assurance can be given as to the liquidity of, or trading markets for, either series of the Preferred Securities. In order to satisfy the NYSE listing requirements with respect to each series of the Preferred Securities, acceptance of Depositary Shares validly tendered in each Offer is subject to the Minimum Distribution Condition, which condition may not be waived by General Motors or the offering Trust. See "Listing and Trading of Preferred Securities and Depositary Shares." REDUCED TRADING MARKET FOR DEPOSITARY SHARES; FUTURE ACQUISITIONS OF DEPOSITARY SHARES To the extent Depositary Shares are tendered and accepted in an Offer, the liquidity and trading market for the Depositary Shares of the series tendered in such Offer to be outstanding following such Offer, and the terms upon which such Depositary Shares could be sold, could be adversely affected. In addition, if any Offer is substantially subscribed, there would be a significant risk that round lot holdings of the Depositary Shares outstanding following such Offer would be limited. Following the applicable Expiration Date, and in accordance with and subject to applicable law, General Motors may from time to time acquire Depositary Shares of either or both series in the open market, by tender offer, subsequent exchange offer, redemption of the underlying Preference Stock or otherwise. To the extent that any such acquisition of Depositary Shares causes the number of outstanding Depositary Shares of a series to be less than 100,000, the NYSE may delist such Depositary Shares from the NYSE and the trading market for such outstanding Depositary Shares of such series could be adversely affected. General Motors' decision to make such acquisitions is dependent on many factors, including market conditions in effect at the time of any contemplated acquisition. Accordingly, General Motors cannot predict whether and to what extent it will acquire any additional Depositary Shares and the consideration to be paid therefor (which consideration may be less than or greater than the value of the Preferred Securities offered in exchange for the Depositary Shares pursuant to the Offers). See "Listing and Trading of Preferred Securities and Depositary Shares." 24 34 COMPARISON OF PREFERRED SECURITIES AND DEPOSITARY SHARES The following is a brief summary of certain terms of each series of the Preferred Securities and the related Depositary Shares (and the underlying Preference Stocks). For a more complete description of the Preferred Securities, see "Description of the Preferred Securities." For a description of the Junior Subordinated Debentures which will be deposited in each Trust as trust assets and will represent the sole source for the payment of distributions and other payments on the related Preferred Securities of such Trust, see "Description of the Junior Subordinated Debentures." For a description of the Depositary Shares (and the underlying Preference Stocks), see "Description of the Preference Stocks and Depositary Shares." SERIES D PREFERRED SECURITIES AND SERIES D 7.92% DEPOSITARY SHARES (REPRESENTING INTERESTS IN SERIES D 7.92% PREFERENCE STOCK)
SERIES D 7.92% DEPOSITARY SHARES SERIES D PREFERRED SECURITIES AND SERIES D 7.92% PREFERENCE STOCK ----------------------------- ----------------------------------- ISSUER................ The Series D Trust. Payment of distributions General Motors (as issuer of the and on liquidation or redemption is guaranteed Series D 7.92% Preference Stock on a subordinated basis, as and to the extent underlying the Series D 7.92% that the Series D Trust has funds and Depositary Shares). otherwise as and to the extent described herein, by General Motors. DISTRIBUTION/DIVIDEND RATE.................. % per annum distribution, payable quarterly on 7.92% per annum dividend, payable February 1, May 1, August 1 and November 1 of quarterly for each of the quarters each year, commencing August 1, 1997 from and ending March, June, September and including the Series D Accrual Date, but only December of each year, payable in if and to the extent that interest payments arrears on the first day that is not are made in respect of the Series D Junior a legal holiday of each succeeding Subordinated Debentures held by the Series D May, August, November and February, Trust. respectively, in each case out of funds legally available therefore, when, as and if declared by the General Motors Board. Dividends are cumulative. Preferential dividends accrue whether or not General Motors has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. INTEREST ACCRUAL...... During any Extension Period applicable to the Accrued but unpaid dividends do not Series D Junior Subordinated Debentures, bear interest. distribution payments on the Series D Preferred Securities will not be made but would continue to accrue, and, in the case of distributions in arrears, would bear interest at the rate of % per annum, compounded quarterly to the extent permitted by applicable law.
25 35
SERIES D 7.92% DEPOSITARY SHARES SERIES D PREFERRED SECURITIES AND SERIES D 7.92% PREFERENCE STOCK MATURITY/MANDATORY AND OPTIONAL REDEMPTION........... The Series D Preferred Securities will be redeemed No maturity or mandatory redemption. upon the maturity or earlier redemption of the On or after August 1, 1999, General Series D Junior Subordinated Debentures, at a Motors may, at its option, on not redemption price equal to $25 per Series D less than 35 nor more than 60 days Preferred Security to be redeemed, plus any accrued notice, redeem any then outstanding and unpaid distributions to the redemption date, shares of Series D 7.92% Preference including distributions accrued as a result of Stock (and the applicable Depositary General Motors' election to defer payments of will redeem the number of Series D interest on the Series D Junior Subordinated 7.92% Depositary Shares representing Debentures. The Series D Junior Subordinated the shares of Series D 7.92% Debentures are redeemable by General Motors, (i) in Preference Stock so redeemed upon whole or in part, from time to time, on or after not less than 30 days notice to the August 1, 1999, at a prepayment price (the "Series holders thereof), as a whole or in D Optional Prepayment Price") equal to 100% of the part, at any time or from time to principal amount thereof plus accrued and unpaid time, for cash in an amount equal to interest thereon to the date of prepayment or (ii) $100 per share of Series D 7.92% in whole but not in part, prior to August 1, 1999, Preference Stock (equivalent to $25 upon the occurrence of a Tax Event, at a prepayment per Series D 7.92% Depositary price (the "Series D Tax Event Prepayment Price" Share), plus an amount equal to all and, together with the Series D Optional Prepayment dividends accrued and unpaid thereon Price, the "Series D Prepayment Price") equal to to the date fixed for redemption. % of the principal amount thereof from the Holders of Series D 7.92% Depositary Series D Expiration Date through July 31, 1997, Shares have no right to require declining ratably on each August 1 thereafter to General Motors to redeem the Series 100% on August 1, 1999, plus accrued and unpaid D 7.92% Depositary Shares. interest thereon to the date of prepayment. In the event that the Series D Junior Subordinated Debentures are redeemed or upon the repayment of the Series D Junior Subordinated Debentures, upon maturity, upon redemption or otherwise, the proceeds thereof will be promptly applied to redeem the Series D Preferred Securities and the Series D Common Securities. The Series D Junior Subordinated Debentures mature on , 2012, which date may be shortened as provided herein, subject to certain conditions. See "Description of the Preferred Securities--Mandatory Redemptions" and "--Tax Event Redemptions." Holders of Series D Preferred Securities have no right to require General Motors to redeem the Series D Preferred Securities.
26 36
SERIES D 7.92% DEPOSITARY SHARES SERIES D PREFERRED SECURITIES AND SERIES D 7.92% PREFERENCE STOCK ----------------------------- ----------------------------------- RANKING; SUBORDINATION......... Junior to claims of creditors of the Series D Subordinated to claims of creditors Trust, if any, upon liquidation of the Series of General Motors including the D Trust. The Series D Preferred Securities and Junior Subordinated Debentures. The the Series D Common Securities will have Series D 7.92% Preference Stock would equivalent terms; provided that if a Series D rank junior to preferred stock of Declaration Event of Default occurs and is General Motors, if any were continuing, the holders of the Series D outstanding, ranks pari passu with Preferred Securities will have a priority over other General Motors Preference Stock holders of the Series D Common Securities with and ranks senior to General Motors respect to payments in respect of Common Stock with respect to payment distributions and payments upon liquidation, of dividends and distributions in redemption or otherwise. The Series D Trust is liquidation. not permitted to issue any securities other than the Series D Trust Securities or to incur any indebtedness. General Motors will pay all fees and expenses related to the Series D Trust and the offering of the Series D Trust Securities. The Series D Junior Subordinated Debentures will rank subordinate and junior to all present and future Senior Indebtedness and Other Financial Obligations of General Motors, pari passu with General Motors' other general unsecured creditors and senior to all capital stock now or hereafter issued by General Motors and to any guarantee now or hereafter entered into by General Motors in respect of any of its capital stock. The obligations of General Motors under the Preferred Securities Guarantee relating to the Series D Preferred Securities are subordinate and junior in right of payment to all liabilities of General Motors and rank pari passu with the most senior preferred stock issued, if any, from time to time by General Motors. Such preferred stock, if any, would rank senior to the Preference Stocks with respect to the payment of dividends and distributions on liquidation. LISTING............... Application will be made to list the Series D The Series D 7.92% Depositary Shares Preferred Securities on the NYSE under the are listed on the NYSE under the symbol " ". In order to satisfy the symbol "GM Pr D." NYSE listing requirements, acceptance of Series D 7.92% Depositary Shares validly tendered in the Series D Offer is subject to the Minimum Distribution Condition, which condition may not be waived. DIVIDENDS RECEIVED DEDUCTION............. Distributions on the Series D Preferred Dividends are eligible for the Securities are not eligible for the dividends dividends received deduction for received deduction for corporate holders. corporate holders.
27 37 VOTING RIGHTS/ ENFORCEMENT.......... Holders of Series D Preferred Securities have no Under the General Motors Certificate voting rights other than as provided under the of Incorporation and the Series D Business Trust Act or the Trust Indenture Act, Deposit Agreement (as defined except in the limited circumstances discussed herein), the Series D 7.92% below. The Institutional Trustee for the Series D Depositary Shares (and the Trust has the power to exercise all rights under underlying shares of Series D 7.92% the Indenture with respect to the Series D Junior Preference Stock) do not entitle Subordinated Debentures and is also authorized to holders thereof to voting rights, enforce the Series D Preferred Securities Guarantee except (i) with respect to any on behalf of holders of the Series D Preferred amendment or alteration of any Securities. If the Series D Trust's failure to make provision of the General Motors distributions is a consequence of General Motors' Certificate of Incorporation which exercise of its right to extend the interest would adversely affect the powers, payment period for the Series D Junior Subordinated preferences or special rights of the Debentures as described under "Description of the Series D 7.92% Depositary Shares Preferred Securities-- Distributions," the (and the underlying shares of Series Institutional Trustee of the Series D Trust will D 7.92% Preference Stock), which have no right to enforce the payment of requires the prior approval of the distributions until a Series D Declaration Event of holders of at least two-thirds of Default shall have occurred. Until such Series D the outstanding Series D 7.92% Declaration Events of Default have been cured, Depositary Shares (and the waived or otherwise eliminated, such Institutional underlying shares of Series D 7.92% Trustee will be deemed to be acting solely on Preference Stock), and (ii) in the behalf of the holders of the Series D Preferred event General Motors fails to pay Securities and only the holders of the Series D accumulated preferential dividends Preferred Securities will have (subject to the on any series of General Motors receipt of a tax opinion as described in Preference Stock in full for any six "Description of the Preferred Securities--Voting quarterly dividend payment periods, Rights") the right to direct such Institutional whether or not consecutive, and all Trustee with respect to certain matters under the such dividends remain unpaid (as Declaration relating to the Series D Trust, and described below), or as required by therefore the Indenture as it relates to the Series law. Subject to certain exceptions, D Trust. If such Institutional Trustee fails to in the event that General Motors enforce its rights under the Series D Junior fails to pay full accumulated Subordinated Debentures after a holder of Series D preferential dividends on the shares Preferred Securities has made a written request, of the Series D 7.92% Preference such holder of record of Series D Preferred Stock in full for any six quarterly Securities may institute a legal proceeding against dividend payment periods, whether or General Motors to enforce such Institutional not consecutive, and all such Trustee's rights under the Series D Junior dividends remain unpaid, the number Subordinated Debentures without first instituting of directors of General Motors would any legal proceeding against such Institutional be increased by two and the holders Trustee or any other person or entity. of Series D 7.92% Depositary Shares, Notwithstanding the foregoing, if a Series D together as a class with the holders Declaration Event of Default has occurred and is of depositary shares representing continuing and such event is attributable to the all other series of General Motors failure of General Motors to pay interest or Preference Stock ranking pari passu principal on the Series D Junior Subordinated to on a parity with such series of Debentures on the date such interest or principal General Motors Preference Stock and is otherwise payable (or in the case of redemption, then entitled to vote thereon, would the redemption date), then a holder of Series D be entitled to elect two directors Preferred Securities may institute a Direct Action of the expanded General Motors Board for enforcement of payment to such holder directly until the full dividends accumulated of the principal of, or interest on, Series D on all outstanding shares of the Junior Subordinated Debentures having a principal Series D 7.92% Preference Stock have amount equal to the aggregate liquidation amount of been paid. the Series D Preferred Securities of such holder on or after the respective due date specified in the Series D Junior Subordinated Debentures. See "Description of the Preferred Securities," "Description of the Junior Subordinated Debentures" and "Description of the Preferred Securities Guarantees."
28 38 SERIES G PREFERRED SECURITIES AND SERIES G 9.12% DEPOSITARY SHARES (REPRESENTING INTERESTS IN SERIES G 9.12% PREFERENCE STOCK)
SERIES G 9.12% DEPOSITARY SHARES SERIES G PREFERRED SECURITIES AND SERIES G 9.12% PREFERENCE STOCK ----------------------------- ----------------------------------- ISSUER................ The Series G Trust. Payment of distributions General Motors (as issuer of the and on liquidation or redemption is guaranteed Series G 9.12% Preference Stock on a subordinated basis, as and to the extent underlying the Series G 9.12% that the Series G Trust has funds and Depositary Shares). otherwise as and to the extent described herein, by General Motors. DISTRIBUTION/DIVIDEND RATE.................. % per annum distribution, payable quarterly on 9.12% per annum dividend, payable February 1, May 1, August 1 and November 1 of quarterly for each of the quarters each year, commencing August 1, 1997 from and ending March, June, September and including the Series G Accrual Date, but only December of each year, payable in if and to the extent that interest payments arrears on the first day that is not are made in respect of the Series G Junior a legal holiday of each succeeding Subordinated Debentures held by the Series G May, August, November and February, Trust. respectively, in each case out of funds legally available therefore, when, as and if declared by the General Motors Board. Dividends are cumulative. Preferential dividends accrue whether or not General Motors has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. INTEREST ACCRUAL...... During any Extension Period applicable to the Accrued but unpaid dividends do not Series G Junior Subordinated Debentures, bear interest. distribution payments on the Series G Preferred Securities will not be made but would continue to accrue, and, in the case of distributions in arrears, would bear interest at the rate of % per annum, compounded quarterly to the extent permitted by applicable law.
29 39 SERIES D 9.12% DEPOSITARY SHARES SERIES D PREFERRED SECURITIES AND SERIES D 9.12% PREFERENCE STOCK MATURITY/MANDATORY AND OPTIONAL REDEMPTION........... The Series G Preferred Securities will be redeemed No maturity or mandatory redemption. upon the maturity or earlier redemption of the On or after January 1, 2001, General Series G Junior Subordinated Debentures, at a Motors may, at its option, on not redemption price equal to $25 per Series G less than 35 nor more than 60 days Preferred Security to be redeemed, plus any accrued notice, redeem any then outstanding and unpaid distributions to the redemption date, shares of Series G 9.12% Preference including distributions accrued as a result of Stock (and the applicable Depositary General Motors' election to defer payments of will redeem the number of Series G interest on the Series G Junior Subordinated 9.12% Depositary Shares representing Debentures. The Series G Junior Subordinated the shares of Series G 9.12% Debentures are redeemable by General Motors, (i) in Preference Stock so redeemed upon whole or in part, from time to time, on or after not less than 30 days notice to the January 1, 2001, at a prepayment price (the "Series holders thereof), as a whole or in G Optional Prepayment Price") equal to 100% of the part, at any time or from time to principal amount thereof plus accrued and unpaid time, for cash in an amount equal to interest thereon to the date of prepayment or (ii) $100 per share of Series G 9.12% in whole but not in part, prior to January 1, 2001, Preference Stock (equivalent to $25 upon the occurrence of a Tax Event, at a prepayment per Series G 9.12% Depositary price (the "Series G Tax Event Prepayment Price" Share), plus an amount equal to all and, together with the Series G Optional Prepayment dividends accrued and unpaid thereon Price, the "Series G Prepayment Price") equal to to the date fixed for redemption. % of the principal amount thereof from the Holders of Series G 9.12% Depositary Series G Expiration Date through December 31, 1997, Shares have no right to require declining ratably on each January 1 thereafter to General Motors to redeem the Series 100% on January 1, 2001, plus accrued and unpaid G 9.12% Depositary Shares. interest thereon to the date of prepayment. In the event that the Series G Junior Subordinated Debentures are redeemed or upon the repayment of the Series G Junior Subordinated Debentures, upon maturity, upon redemption or otherwise, the proceeds thereof will be promptly applied to redeem the Series G Preferred Securities and the Series G Common Securities. The Series G Junior Subordinated Debentures mature on , 2012, which date may be shortened as provided herein, subject to certain conditions. See "Description of the Preferred Securities--Mandatory Redemptions" and "--Tax Event Redemptions." Holders of Series G Preferred Securities have no right to require General Motors to redeem the Series G Preferred Securities.
30 40
SERIES G 9.12% DEPOSITARY SHARES SERIES G PREFERRED SECURITIES AND SERIES G 9.12% PREFERENCE STOCK ----------------------------- ----------------------------------- RANKING; SUBORDINATION......... Junior to claims of creditors of the Series G Subordinated to claims of creditors Trust, if any, upon liquidation of the Series of General Motors including the G Trust. The Series G Preferred Securities and Junior Subordinated Debentures The the Series G Common Securities will have Series G 9.12% Preference Stock would equivalent terms; provided that if a Series G rank junior to preferred stock of Declaration Event of Default occurs and is General Motors, if any were continuing, the holders of the Series G outstanding, ranks pari passu with Preferred Securities will have a priority over other General Motors Preference Stock holders of the Series G Common Securities with and ranks senior to General Motors respect to payments in respect of Common Stock with respect to payment distributions and payments upon liquidation, of dividends and distributions in redemption or otherwise. The Series G Trust is liquidation. not permitted to issue any securities other than the Series G Trust Securities or to incur any indebtedness. General Motors will pay all fees and expenses related to the Series G Trust and the offering of the Series G Trust Securities. The Series G Junior Subordinated Debentures will rank subordinate and junior to all present and future Senior Indebtedness and Other Financial Obligations of General Motors, pari passu with General Motors' other general unsecured creditors and senior to all capital stock now or hereafter issued by General Motors and to any guarantee now or hereafter entered into by General Motors in respect of any of its capital stock. The obligations of General Motors under the Preferred Securities Guarantee relating to the Series G Preferred Securities are subordinate and junior in right of payment to all liabilities of General Motors and rank pari passu with the most senior preferred stock issued, if any, from time to time by General Motors. Such preferred stock, if any, would rank senior to the Preference Stocks with respect to the payment of dividends and distributions on liquidation. LISTING............... Application will be made to list the Series G The Series D 9.12% Depositary Shares Preferred Securities on the NYSE under the are listed on the NYSE under the symbol " ". In order to satisfy the symbol "GM Pr G." NYSE listing requirements, acceptance of Series G 9.12% Depositary Shares validly tendered in the Series G Offer is subject to the Minimum Distribution Condition, which condition may not be waived. DIVIDENDS RECEIVED DEDUCTION............. Distributions on the Series G Preferred Dividends are eligible for the Securities are not eligible for the dividends dividends received deduction for received deduction for corporate holders. corporate holders.
31 41 VOTING RIGHTS/ ENFORCEMENT.......... Holders of Series G Preferred Securities have no Under the General Motors Certificate voting rights other than as provided under the of Incorporation and the Series G Business Trust Act or the Trust Indenture Act, Deposit Agreement (as defined except in the limited circumstances discussed herein), the Series G 9.12% below. The Institutional Trustee for the Series G Depositary Shares (and the Trust has the power to exercise all rights under underlying of Series G 9.12% the Indenture with respect to the Series G Junior Preference Stock) do not entitle Subordinated Debentures and is also authorized to holders thereof to voting rights, enforce the Series G Preferred Securities Guarantee except (i) with respect to any on behalf of holders of the Series G Preferred amendment or alteration of any Securities. If the Series G Trust's failure to make provision of the General Motors distributions is a consequence of General Motors' Certificate of Incorporation which exercise of its right to extend the interest would adversely affect the powers, payment period for the Series G Junior Subordinated preferences or special rights of the Debentures as described under "Description of the Series G 9.12% Depositary Shares Preferred Securities-- Distributions," the (and the underlying shares of Series Institutional Trustee of the Series G Trust will G 9.12% Preference Stock), which have no right to enforce the payment of requires the prior approval of the distributions until a Series G Declaration Event of holders of at least two-thirds of Default shall have occurred. Until such Series G the outstanding Series G 9.12% Declaration Events of Default have been cured, Depositary Shares (and the waived or otherwise eliminated, such Institutional underlying shares of Series G 9.12% Trustee will be deemed to be acting solely on Preference Stock), and (ii) in the behalf of the holders of the Series G Preferred event General Motors fails to pay Securities and only the holders of the Series G accumulated preferential dividends Preferred Securities will have (subject to the on any series of General Motors receipt of a tax opinion as described in Preference Stock in full for any six "Description of the Preferred Securities--Voting quarterly dividend payment periods, Rights") the right to direct such Institutional whether or not consecutive, and all Trustee with respect to certain matters under the such dividends remain unpaid (as Declaration relating to the Series G Trust, and described below), or as required by therefore the Indenture as it relates to the Series law. Subject to certain exceptions, G Trust. If such Institutional Trustee fails to in the event that General Motors enforce its rights under the Series G Junior fails to pay full accumulated Subordinated Debentures after a holder of Series G preferential dividends on the shares Preferred Securities has made a written request, of the Series G 9.12% Preference such holder of record of Series G Preferred Stock in full for any six quarterly Securities may institute a legal proceeding against dividend payment periods, whether or General Motors to enforce such Institutional not consecutive, and all such Trustee's rights under the Series G Junior dividends remain unpaid, the number Subordinated Debentures without first instituting of directors of General Motors would any legal proceeding against such Institutional be increased by two and the holders Trustee or any other person or entity. of Series G 9.12% Depositary Shares, Notwithstanding the foregoing, if a Series G together as a class with the holders Declaration Event of Default has occurred and is of depositary shares representing continuing and such event is attributable to the all other series of General Motors failure of General Motors to pay interest or Preference Stock ranking junior to principal on the Series G Junior Subordinated or on a parity with such series of Debentures on the date such interest or principal General Motors Preference Stock and is otherwise payable (or in the case of redemption, then entitled to vote thereon, would the redemption date), then a holder of Series G be entitled to elect two directors Preferred Securities may institute a Direct Action of the expanded General Motors Board for enforcement of payment to such holder directly until the full dividends accumulated of the principal of, or interest on, Series G on all outstanding shares of the Junior Subordinated Debentures having a principal Series G 9.12% Preference Stock have amount equal to the aggregate liquidation amount of been paid. the Series G Preferred Securities of such holder on or after the respective due date specified in the Series G Junior Subordinated Debentures. See "Description of the Preferred Securities," "Description of the Junior Subordinated Debentures" and "Description of the Preferred Securities Guarantees."
32 42 GENERAL MOTORS CORPORATION The major portion of General Motors' operations is derived from the automotive products industry, consisting of the design, manufacture, assembly and sale of automobiles, trucks and related parts and accessories. Primarily through its wholly owned subsidiaries, General Motors Acceptance Corporation and Hughes, General Motors also provides services and manufactures products in other industry segments. On January 16, 1997, General Motors announced a series of planned transactions (the "Hughes Transactions") designed to address strategic challenges and unlock stockholder value in the three business segments of Hughes. The transactions would include the tax-free spin-off of the Hughes defense business to holders of $1 2/3 Common Stock and Class H Common Stock, followed immediately by the tax-free merger of that business with Raytheon Company. At the same time, Delco Electronics, the automotive electronics subsidiary of Hughes, would be transferred from Hughes to General Motors' Delphi Automotive Systems unit. Finally, Class H Common Stock would be recapitalized into a General Motors tracking stock linked to the telecommunications and space business of Hughes. General Motors' principal executive offices are located at 100 Renaissance Center, Detroit, Michigan 48243-7301 (Telephone Number (313) 556-5000). 33 43 GENERAL MOTORS SELECTED FINANCIAL DATA AND CERTAIN PER SHARE DATA The following General Motors selected financial data and certain per share data have been derived from General Motors' Consolidated Financial Statements. Such data should be read in conjunction with General Motors' Consolidated Financial Statements (including the notes thereto) and Management's Discussion and Analysis in the General Motors 1996 Form 10-K, which is incorporated herein by reference, including the information with respect to Hughes in Exhibit 99 thereto. The General Motors selected financial data and certain per share data as of and for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 have been derived from General Motors' Consolidated Financial Statements, which have been audited by Deloitte & Touche LLP, independent auditors. The selected financial data presented with financing and insurance operations on an equity basis as of and for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 are unaudited.
AS OF AND FOR THE YEARS ENDED DECEMBER 31, ---------------------------------------------------- 1996 1995(A) 1994(B) 1993 1992(C) ---- ------- ------- ---- ------- (IN MILLIONS, EXCEPT PER SHARE AMOUNTS) OPERATING RESULTS Total net sales and revenues....................... $164,069 $160,272 $148,499 $132,991 $127,378 -------- -------- -------- -------- -------- Costs and expenses................................. 158,120 151,923 141,401 130,330 130,207 Plant closings reserve adjustments and provision for other restructurings......................... (727) -- -- 950 1,237 -------- -------- -------- -------- -------- Total costs and expenses...................... 157,393 151,923 141,401 131,280 131,444 -------- -------- -------- -------- -------- Income (Loss) from continuing operations before cumulative effect of accounting changes.......... 4,953 6,033 4,866 1,777 (3,222) -------- -------- -------- -------- -------- Net income (loss).................................. $ 4,963 $ 6,881 $ 4,901 $ 2,466 $(23,498) -------- -------- -------- -------- -------- EARNINGS (LOSS) PER SHARE ATTRIBUTABLE TO COMMON STOCKS $1 2/3 Common Stock per share from continuing operations before cumulative effect of accounting changes.......................................... $ 6.07 $ 7.14 $ 5.74 $ 1.68 $ (5.33) -------- -------- -------- -------- -------- Net earnings (loss) per share attributable to $1 2/3 Common Stock..................................... $ 6.06 $ 7.21 $ 5.15 $ 2.13 $ (38.28) -------- -------- -------- -------- -------- Income per share from discontinued operations attributable to Class E Common Stock............. $ 0.04 $ 1.96 $ 1.71 $ 1.51 $ 1.33 -------- -------- -------- -------- -------- Net earnings (loss) per share attributable to Class H Common Stock................................... $ 2.88 $ 2.77 $ 2.62 $ 2.30 $ (2.29) -------- -------- -------- -------- -------- BALANCE SHEET DATA Cash and marketable securities..................... $ 22,262 $ 16,018 $ 15,331 $ 17,369 $ 14,533 -------- -------- -------- -------- -------- Total assets....................................... 222,142 213,663 191,145 182,388 184,287 -------- -------- -------- -------- -------- Notes and loans payable............................ 85,300 81,222 72,545 69,747 81,767 -------- -------- -------- -------- -------- Stockholders' equity............................... 23,418 23,346 12,824 5,598 6,226 -------- -------- -------- -------- -------- Cumulative Amount Available for Payment of Dividends(d) $1 2/3 Common Stock.............................. $ 22,081 $ 12,475 $ 9,014 $ 4,870 $ 3,488 Class E Common Stock............................. -- 10,672 3,752 3,244 2,546 Class H Common Stock............................. 3,245 2,909 2,169 1,887 1,583 -------- -------- -------- -------- -------- Total......................................... $ 25,326 $ 26,056 $ 14,935 $ 10,001 $ 7,617 ======== ======== ======== ======== ======== CERTAIN PER SHARE DATA Cash Dividends Per Share $1 2/3 Common Stock.............................. $ 1.60 $ 1.10 $ 0.80 $ 0.80 $ 1.40 -------- -------- -------- -------- -------- Class E Common Stock............................. $ 0.30 $ 0.52 $ 0.48 $ 0.40 $ 0.36 -------- -------- -------- -------- -------- Class H Common Stock............................. $ 0.96 $ 0.92 $ 0.80 $ 0.72 $ 0.72 -------- -------- -------- -------- -------- Book Value Per Share(e) $1 2/3 Common Stock.............................. $ 27.95 $ 24.37 $ 11.18 $ 1.65 $ 1.98 -------- -------- -------- -------- -------- Class E Common Stock............................. $ -- $ 3.11 $ 1.43 $ 0.21 $ 0.25 -------- -------- -------- -------- -------- Class H Common Stock............................. $ 13.97 $ 12.20 $ 5.59 $ 0.83 $ 0.99 -------- -------- -------- -------- --------
34 44
AS OF AND FOR THE YEARS ENDED DECEMBER 31, ---------------------------------------------------- 1996 1995(A) 1994(B) 1993 1992(C) ---- ------- ------- ---- ------- (IN MILLIONS) GENERAL MOTORS OPERATIONS WITH FINANCING AND INSURANCE OPERATIONS ON AN EQUITY BASIS: OPERATING RESULTS Total net sales and revenues....................... $145,427 $143,754 $134,888 $119,803 $113,489 -------- -------- -------- -------- -------- Costs and expenses................................. 142,938 138,294 129,383 118,449 117,289 Plant closings reserve adjustments and provisions for other restructurings......................... (727) -- -- 950 1,237 -------- -------- -------- -------- -------- Total costs and expenses...................... 142,211 138,294 129,383 119,399 118,526 -------- -------- -------- -------- -------- Income (Loss) from continuing operations before cumulative effect of accounting changes.......... 4,953 6,033 4,859 1,777 (3,504) -------- -------- -------- -------- -------- Net income (loss).................................. $ 4,963 $ 6,881 $ 4,901 $ 2,466 $(23,498) -------- -------- -------- -------- -------- BALANCE SHEET DATA Cash and marketable securities..................... $ 16,962 $ 10,241 $ 10,232 $ 9,891 $ 7,386 -------- -------- -------- -------- -------- Total assets....................................... 135,262 130,644 118,860 115,160 115,422 -------- -------- -------- -------- -------- Long-term debt and capitalized leases.............. 5,390 4,280 5,198 5,861 6,495 -------- -------- -------- -------- -------- Stockholders' equity............................... 23,418 23,346 12,824 5,598 6,226 -------- -------- -------- -------- --------
- ------------------------- (a) In November 1995, the Emerging Issues Task Force of the Financial Accounting Standards Board reached a consensus on its Issue No. 95-1, "Revenue Recognition of Sales with a Guaranteed Minimum Resale Value." Adoption of this consensus, effective January 1, 1995, resulted in an unfavorable cumulative effect of $52 million, or $0.07 per share, attributable to $1 2/3 Common Stock. (b) Effective January 1, 1994, General Motors adopted Statement of Financial Accounting Standards ("SFAS") No. 112, "Employers' Accounting for Postemployment Benefits." The unfavorable cumulative effect of adopting SFAS No. 112 was $758 million, or $751 million, or $1.05 per share, attributable to $1 2/3 Common Stock and $7 million, or $0.08 per share, attributable to Class H Common Stock. (c) General Motors adopted SFAS No. 106, "Employers' Accounting for Postretirement Benefits Other Than Pensions," effective January 1, 1992. The unfavorable cumulative effect of adopting SFAS No. 106 was $20.7 billion, or $33.38 per share, attributable to $1 2/3 Common Stock and $150 million, or $2.08 per share, attributable to Class H Common Stock. Also, effective January 1, 1992, Hughes changed its revenue recognition policy for certain commercial businesses. The unfavorable effect of this change on 1992 earnings was $33 million, or $0.05 per share, attributable to $1 2/3 Common Stock, and $7 million, or $0.10 per share, attributable to Class H Common Stock. (d) Amount of funds legally available as of such date for the payment of dividends on each class of General Motors Common Stock under the Restated General Motors Certificate of Incorporation, as amended. (e) Determined based on the liquidation rights with respect to the assets of General Motors associated with the various classes of General Motors Common Stock. 35 45 RECENT DEVELOPMENTS On April 14, 1997, General Motors announced that income from continuing operations for the first quarter of 1997 totaled $1.8 billion, or $2.30 per share of $1 2/3 Common Stock, compared with $800 million, or $0.93 per share of $1 2/3 Common Stock, in the first quarter of 1996. The 1996 first quarter results included an unfavorable impact of $900 million after tax, or $1.20 per share of $1 2/3 Common Stock, related to the impact of a 17-day strike at two General Motors component plants. Interim results are not necessarily indicative of the results which may be expected for any other interim period or for the full year. GENERAL MOTORS SUMMARY UNAUDITED CONDENSED CONSOLIDATED HISTORICAL FINANCIAL DATA AS OF AND FOR THE THREE MONTHS ENDED MARCH 31, (IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
1997 1996 ---- ---- OPERATING RESULTS Total net sales and revenues................................ $ 42,260 $ 39,240 -------- -------- Total costs and expenses.................................... 39,475 38,007 -------- -------- Income from continuing operations........................... 1,796 800 -------- -------- Net income.................................................. $ 1,796 $ 1,019 -------- -------- Earnings per share attributable to Common Stocks: $1 2/3 Common Stock from continuing operations............ $ 2.30 $ 0.93 Discontinued operations................................... -- 0.01 -------- -------- Net earnings attributable to $1 2/3 Common Stock....... $ 2.30 $ 0.94 ======== ======== Net earnings attributable to Class E Common Stock...... $ -- $ 0.45 ======== ======== Net earnings attributable to Class H Common Stock...... $ 0.59 $ 0.78 ======== ======== BALANCE SHEET DATA Cash and marketable securities.............................. $ 20,229 $ 13,320 -------- -------- Total assets................................................ 226,059 211,830 -------- -------- Notes and loans payable..................................... 88,111 80,299 -------- -------- Stockholders' Equity........................................ 22,805 24,022 -------- -------- CERTAIN PER SHARE DATA Cash Dividends Per Share $1 2/3 Common Stock....................................... $ 0.50 $ 0.40 -------- -------- Class E Common Stock...................................... $ -- $ 0.15 -------- -------- Class H Common Stock...................................... $ 0.25 $ 0.24 -------- -------- Book Value Per Share $1 2/3 Common Stock....................................... $ 28.10 $ 26.67 -------- -------- Class E Common Stock...................................... $ -- $ 3.40 -------- -------- Class H Common Stock...................................... $ 14.05 $ 13.35 -------- -------- GM OPERATING RESULTS WITH FINANCING AND INSURANCE OPERATIONS ON AN EQUITY BASIS OPERATING RESULTS Total net sales and revenues................................ $ 37,457 $ 34,672 -------- -------- Total costs and expenses.................................... 35,867 34,359 -------- -------- Income from continuing operations........................... 1,796 800 -------- -------- Net income.................................................. $ 1,796 $ 1,019 -------- -------- BALANCE SHEET DATA Cash and marketable securities.............................. $ 14,628 $ 7,639 -------- -------- Total assets................................................ 136,012 129,110 -------- -------- Long-term debt and capitalized leases....................... 5,507 4,673 -------- -------- Stockholders' equity........................................ $ 22,805 $ 24,022 -------- --------
36 46 NEW ACCOUNTING STANDARD In February 1997, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share," and SFAS No. 129, "Disclosure of Information about Capital Structure." SFAS No. 128 specifies the computation, presentation and disclosure requirements for earnings per share for entities with publicly held common stock or potential common stock. SFAS No. 129 requires an entity to explain the permanent rights and privileges of outstanding securities. General Motors has determined that the impact of adoption will be immaterial to its consolidated financial statements, however, General Motors will be required to increase its disclosures with regard to these matters including disclosing basic and diluted earnings per share in its consolidated financial statements. General Motors will adopt these new accounting standards in the fourth quarter of 1997, as required. 37 47 GENERAL MOTORS RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The following ratios of earnings to combined fixed charges and preferred stock dividends of General Motors have been derived from General Motors' Consolidated Financial Statements. Such data should be read in conjunction with General Motors' Consolidated Financial Statements (including the notes thereto) and Management's Discussion and Analysis in the General Motors 1996 Form 10-K, which is incorporated herein by reference, including the information with respect to Hughes in Exhibit 99 thereto. The ratios of earnings to combined fixed charges and preferred stock dividends of General Motors as of and for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 have been derived from General Motors' Consolidated Financial Statements, which have been audited by Deloitte & Touche LLP, independent auditors.
YEARS ENDED DECEMBER 31, - -------------------------------- 1996 1995 1994 1993 1992 - ---- ---- ---- ---- ---- 2.07 2.20 2.14 1.21 *
- ------------------------- * Earnings were inadequate to cover fixed charges by $4,510 million in 1992. For purposes of computing the ratio of earnings to fixed charges, "earnings" consist of income from continuing operations before cumulative effect of accounting changes plus income taxes and fixed charges included in income from continuing operations after eliminating the amortization of capitalized interest and the undistributed earnings of affiliates; "fixed charges" consist of interest and related charges on debt, that portion of rentals deemed to be interest and interest capitalized in the period; and "preferred stock dividends" represent the pretax earnings required to cover the dividend requirements of General Motors' preference and preferred stock, as applicable. 38 48 CAPITALIZATION The following table sets forth the capitalization of General Motors and its consolidated subsidiaries at December 31, 1996, and as adjusted to reflect consummation of the Offers, assuming that all of the Depositary Shares sought to be tendered pursuant to the Offers are validly tendered and accepted by General Motors and the Trusts in exchange for the Preferred Securities. See "The Offers--Purpose of the Offers." Thus, the following table reflects the exchange of 5,462,917 Series D 7.92% Depositary Shares and 9,071,910 Series G 9.12% Depositary Shares, in each case for an equal number of the related series of Preferred Securities offered hereby. The following should be read in conjunction with General Motors' Consolidated Financial Statements (including the notes thereto) and Management's Discussion and Analysis in General Motors' 1996 Form 10-K, which is incorporated herein by reference, including the information with respect to Hughes in Exhibit 99 thereto.
DECEMBER 31, 1996 -------------------- ACTUAL ADJUSTED ------ -------- (IN MILLIONS) Notes and loans payable..................................... $ 85,300 $ 85,300 -------- -------- Minority interest in General Motors Capital Trust D and General Motors Capital Trust G............................ -- 396 -------- -------- STOCKHOLDERS' EQUITY Preference Stocks......................................... 1 (a) Common stocks $1 2/3 Common Stock.................................... 1,261 1,261 Class H Common Stock................................... 10 10 Capital surplus (principally additional paid-in capital)............................................... 19,189 18,838 Retained earnings......................................... 6,137 6,093 -------- -------- Subtotal............................................... 26,598 26,202 Minimum pension liability adjustment...................... (3,490) (3,490) Accumulated foreign currency translation adjustments...... (113) (113) Net realized gains on investments in certain debt and equity securities...................................... 423 423 -------- -------- Total stockholders' equity............................. 23,418 23,022 -------- -------- Total capitalization................................... $108,718 $108,718 ======== ========
- ------------------------- (a) Less than $1 million. 39 49 ACCOUNTING TREATMENT The refinancings of the Preference Stocks with the Preferred Securities will decrease General Motors' stockholders' equity and may increase or decrease earnings applicable to common stockholders depending upon the difference between the carrying value of the Preference Stocks represented by the Depositary Shares accepted in the exchange and the fair market value of the Preferred Securities at the time of the exchange. The financial statements of each Trust will be consolidated into General Motors' consolidated financial statements, with the Preferred Securities treated and disclosed as minority interest in General Motors' consolidated financial statements and described in the notes thereto as "General Motors-obligated mandatorily redeemable preferred securities of subsidiaries holding solely junior subordinated debentures of General Motors." The notes to the financial statements of General Motors will also reflect that the sole assets of the Series D Trust will be the principal amount of the Series D Junior Subordinated Debentures and that the sole assets of the Series G Trust will be the principal amount of the Series G Junior Subordinated Debentures. 40 50 THE TRUSTS Each of the Series D Trust and the Series G Trust is a statutory business trust, in each case formed under Delaware law pursuant to (i) a declaration of trust, dated as of April 11, 1997, executed by General Motors, as Sponsor, and the Trustees of such Trust and (ii) the filing of a certificate of trust with the Secretary of State of the State of Delaware on April 11, 1997. The declaration relating to each Trust will be amended and restated in its entirety (with respect to each Trust, as so amended and restated, the "Declaration") substantially in the form filed as an exhibit to the Registration Statement of which this Prospectus forms a part. Each Declaration will be qualified as an indenture under the Trust Indenture Act. Upon issuance by a Trust of its Preferred Securities, the purchasers thereof will own all of such Preferred Securities. See "Description of the Preferred Securities--Book-Entry; Delivery and Form." General Motors will directly or indirectly acquire all of the Common Securities of each Trust, in each case in an aggregate liquidation amount equal to at least 3% of the total capital of such Trust. Pursuant to each Declaration, the number of Trustees for each Trust will initially be five. Three of the Trustees (with respect to each Trust, the "Regular Trustees") will be persons who are employees or officers of, or who are affiliated with, General Motors. The fourth trustee for each Trust will be a financial institution that is unaffiliated with General Motors, which trustee will serve as the Institutional Trustee of such Trust. Initially, Wilmington Trust Company will be the Institutional Trustee under each of the Series D Trust and the Series G Trust, in each case until removed or replaced by the holder of the Common Securities of the applicable Trust. For purposes of compliance with the provisions of the Trust Indenture Act, Wilmington Trust Company will act as the Guarantee Trustee for each of the Series D Trust and the Series G Trust, in each case under the applicable Preferred Securities Guarantee, and as Debt Trustee of each of the Series D Trust and the Series G Trust, in each case under the Indenture. The fifth trustee for each Trust will be the Delaware Trustee. Initially, Wilmington Trust Company will act as Delaware Trustee for each of the Series D Trust and the Series G Trust. See "Description of the Preferred Securities Guarantees" and "Description of the Preferred Securities--Voting Rights" herein. The Institutional Trustee of a Trust will hold title to the Junior Subordinated Debentures purchased by such Trust for the benefit of the holders of the Trust Securities of such Trust and will have the power to exercise all rights, powers and privileges under the Indenture as the holder of such Junior Subordinated Debentures. In addition, the Institutional Trustee of such Trust will maintain exclusive control of the Property Account of such Trust to hold all payments made in respect of the Junior Subordinated Debentures held by such Trust for the benefit of the holders of the Trust Securities of such Trust. The Institutional Trustee of a Trust will make payments of distributions and payments on liquidation, redemption and otherwise to the holders of the Trust Securities of such Trust out of funds from the Property Account of such Trust. The Guarantee Trustee of a Trust will hold the Preferred Securities Guarantee relating to such Trust for the benefit of the holders of the Preferred Securities to which such Preferred Securities Guarantee relates. General Motors, as the direct or indirect holder of all the Common Securities of each Trust, will have the right to appoint, remove or replace any Trustee for such Trust and to increase or decrease the number of Trustees for such Trust. General Motors will pay all fees and expenses related to each Trust and the offering of the Trust Securities of such Trust. See "Description of the Junior Subordinated Debentures--Miscellaneous." The rights of the holders of the Preferred Securities of a Trust, including economic rights, rights to information and voting rights, are set forth in the Declaration relating to such Trust, the Business Trust Act and the Trust Indenture Act. See "Description of the Preferred Securities." Each of the Trusts exists for the sole purpose of (i) issuing (a) its Preferred Securities in exchange for Depositary Shares validly tendered in its Offer and delivering such Depositary Shares to General Motors in consideration of the deposit by General Motors as trust assets of the related Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of its Preferred Securities, and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equal aggregate stated principal amount of such Junior Subordinated Debentures and (ii) engaging in those other activities as are necessary or incidental thereto. 41 51 Under the applicable Declaration, a Trust shall not, and the Trustees (including the Institutional Trustee) of such Trust shall cause such Trust not to, engage in any activity other than in connection with the purposes of such Trust or other than as required or authorized by such Declaration. In particular, a Trust shall not and the Trustees (including the Institutional Trustee) of such Trust shall not (i) invest any proceeds received by such Trust from holding the Junior Subordinated Debentures purchased by such Trust but shall promptly distribute all such proceeds to holders of its Trust Securities pursuant to the terms of the applicable Declaration and of such Trust Securities; (ii) acquire any assets other than as expressly provided in the applicable Declaration; (iii) possess Trust property for other than a Trust purpose; (iv) make any investments, other than investments represented by the Junior Subordinated Debentures purchased by such Trust; (v) possess any power or otherwise act in such a way as to vary trust assets or the terms of its Trust Securities in any way whatsoever; (vi) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, such Trust other than its Trust Securities; (vii) incur any indebtedness for borrowed money or (viii) (a) direct the time, method and place of exercising any trust or power conferred upon the Debt Trustee of such Trust with respect to the Junior Subordinated Debentures held by such Trust, (b) waive any past default that is waivable under Section 5.7 of the Indenture, (c) exercise any right to rescind or annul any declaration that the principal of all of the Junior Subordinated Debentures held by such Trust shall be due and payable or (d) consent to any amendment, modification or termination of the Indenture as it relates to such Trust or the Junior Subordinated Debentures held by such Trust or the applicable Declaration, in each case where such consent shall be required, if such action would cause such Trust to be classified for United States federal income tax purposes as other than a grantor trust or would cause such Trust to be deemed an "investment company" which is required to be registered under the Investment Company Act of 1940, as amended (the "1940 Act"). Each Declaration may be modified and amended if approved by the Regular Trustees (and in certain circumstances the Institutional Trustee and the Delaware Trustee) of the applicable Trust, provided that, if any proposed amendment provides for, or such Regular Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Trust Securities of such Trust, whether by way of amendment to the applicable Declaration or otherwise or (ii) the dissolution, winding-up or termination of such Trust other than pursuant to the terms of applicable Declaration, then the holders of Trust Securities of such Trust voting together as a single class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of at least a majority in liquidation amount of the Trust Securities of such Trust affected thereby; provided, that, if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or the Common Securities of such Trust, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a majority in liquidation amount of such class of Securities. The books and records of a Trust will be maintained at its principal office and will be open for inspection by a holder of the Preferred Securities of such Trust or the duly authorized representative of such holder for any purpose reasonably related to its interest in such Trust during normal business hours. Each Trust anticipates that it will not be required to file with the Commission or distribute to holders of its Preferred Securities periodic reports regarding each Trust. Each Declaration provides that the Trustees of the applicable Trust may treat the person in whose name a Preferred Security of such Trust is registered on the books and records of such Trust as the sole holder thereof and of the Preferred Securities represented thereby for purposes of receiving distributions and for all other purposes and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such certificate or in the Preferred Securities represented thereby on the part of any person, whether or not such Trust shall have actual or other notice thereof. The Preferred Securities of each Trust will be issued in fully registered form. Investors may elect to hold their Preferred Securities directly or, subject to the rules and procedures of The Depository Trust Company (the "Depository Institution") described under "Description of the Preferred Securities--Book-Entry; Delivery and Form," hold interests in a global certificate registered on 42 52 the books and records of the applicable Trust in the name of a Depository Institution or its nominee. Under each Declaration: (i) the applicable Trust and its Trustees shall be entitled to deal with a Depository Institution (or any successor depositary) for all purposes, including the payment of distributions and receiving approvals, or consents under such Declaration, and except as set forth in the applicable Declaration, shall have no obligation to persons owning its Preferred Securities (with respect to such Trust, "Preferred Security Beneficial Owners") registered in the name of and held by a Depository Institution or its nominee; and (ii) the rights of Preferred Security Beneficial Owners shall be exercised only through a Depository Institution (or any successor depository) and shall be limited to those established by law and agreements between such Preferred Security Beneficial Owners and a Depository Institution and/or its participants. See "Description of the Preferred Securities--Book-Entry; Delivery and Form." With respect to Preferred Securities registered in the name of and held by a Depository Institution or its nominee, all notices and other communications required under the applicable Declaration shall be given to, and all distributions on such Preferred Securities shall be given or made to, a Depository Institution (or its successor). THE FOREGOING SUMMARY OF CERTAIN PROVISIONS OF EACH OF THE DECLARATIONS IS A DISCUSSION OF ALL MATERIAL TERMS OF SUCH DECLARATIONS, BUT DOES NOT PURPORT TO BE COMPLETE AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE DECLARATIONS WHICH HAVE BEEN FILED AS EXHIBITS TO THE REGISTRATION STATEMENT OF WHICH THIS PROSPECTUS IS A PART. The business address of the Series D Trust is c/o General Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301, telephone number (313) 556-5000. The business address of the Series G Trust is c/o General Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301, telephone number (313) 556-5000. 43 53 THE OFFERS PURPOSE OF THE OFFERS The purpose of the Offers is to refinance the Depositary Shares with the Preferred Securities to restructure a portion of General Motors' outstanding equity while achieving competitive financing and certain tax efficiencies and preserving General Motors' flexibility with respect to future financings. The refinancings effected pursuant to the Offers will permit General Motors to deduct interest payable on the Junior Subordinated Debentures for United States federal income tax purposes. GENERAL PARTICIPATION IN AN OFFER IS VOLUNTARY AND HOLDERS OF DEPOSITARY SHARES SHOULD CAREFULLY CONSIDER WHETHER TO ACCEPT AN OFFER. NONE OF GENERAL MOTORS, THE BOARD OF DIRECTORS OF GENERAL MOTORS, THE TRUSTEES OF THE SERIES D TRUST, THE SERIES D TRUST, THE TRUSTEES OF THE SERIES G TRUST NOR THE SERIES G TRUST MAKES ANY RECOMMENDATION TO HOLDERS AS TO WHETHER TO EXCHANGE OR REFRAIN FROM EXCHANGING THEIR DEPOSITARY SHARES IN ANY OFFER. HOLDERS OF DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX ADVISORS IN MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES. SEE "PRICE RANGE OF DEPOSITARY SHARES." Unless the context requires otherwise, the term "Holder" means, with respect to an Offer, (i) any person in whose name any Depositary Shares subject to such Offer are registered on the books of General Motors or (ii) any other person who has obtained a properly completed stock power from the registered holder, or (iii) any person whose Depositary Shares subject to such Offer are held of record by a Depository Institution. TERMS OF THE OFFERS Series D Offer. Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, the Series D Trust will exchange Series D Preferred Securities for up to 5,462,917 of the outstanding Series D 7.92% Depositary Shares not owned by General Motors. The Series D Offer will be effected on a basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange, as applicable. See "--Procedures for Tendering." Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, the Series D Trust will accept Series D 7.92% Depositary Shares validly tendered and not withdrawn prior to the Series D Expiration Date and, unless the Series D Offer has been withdrawn or terminated, will deliver Series D Preferred Securities in exchange therefor to tendering holders of Series D 7.92% Depositary Shares as promptly as practicable following the Series D Expiration Date. The Series D Trust expressly reserves the right, in its sole discretion, to delay acceptance for exchange of Series D 7.92% Depositary Shares tendered under the Series D Offer and the delivery of the Series D Preferred Securities with respect to the Series D 7.92% Depositary Shares accepted for exchange (subject to Rules 13e-4 and 14e-1 under the Exchange Act, which require that General Motors and the Trust consummate the Series D Offer or return the Series D 7.92% Depositary Shares deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of the Series D Offer), or to amend, withdraw or terminate the Series D Offer, at any time prior to the Series D Expiration Date for any of the reasons set forth in "--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." Series G Offer. Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, the Series G Trust will exchange Series G Preferred Securities for up to 9,071,910 of the outstanding Series G 9.12% Depositary Shares not owned by General Motors. The Series G Offer will be effected on a basis of one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange, as applicable. See "--Procedures for Tendering." Upon the terms and subject to the conditions set forth herein and in the Letter of 44 54 Transmittal relating to the Series G 9.12% Depositary Shares, the Series G Trust will accept Series G 9.12% Depositary Shares validly tendered and not withdrawn prior to the Series G Expiration Date and, unless the Series G Offer has been withdrawn or terminated, will deliver Series G Preferred Securities in exchange therefor to tendering holders of Series G 9.12% Depositary Shares as promptly as practicable following the Series G Expiration Date. The Series G Trust expressly reserves the right, in its sole discretion, to delay acceptance for exchange of Series G 9.12% Depositary Shares tendered under the Series G Offer and the delivery of the Series G Preferred Securities with respect to the Series G 9.12% Depositary Shares accepted for exchange (subject to Rules 13e-4 and 14e-1 under the Exchange Act, which require that General Motors and the Trust consummate the Series G Offer or return the Series G 9.12% Depositary Shares deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of the Series G Offer), or to amend, withdraw or terminate the Series G Offer, at any time prior to the Series G Expiration Date for any of the reasons set forth in "--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." If more than the maximum number of Depositary Shares of either series are validly tendered to a Trust pursuant to its Offer and are not withdrawn, the applicable Trust will, upon the terms and subject to the conditions of its Offer, accept such Depositary Shares for exchange on a pro rata basis, with adjustments to avoid distributions of fractional Preferred Securities. Such proration shall be based on the quotient of (i) the maximum number of such related Depositary Shares for such Offer divided by (ii) the total number of such related Depositary Shares validly tendered pursuant to such Offer and not withdrawn. All questions as to such proration will be determined in good faith by the applicable Trust, whose determination will be final and binding. Delivery of Preferred Securities in exchange for Depositary Shares validly tendered and accepted in an Offer will be made on a date determined by General Motors after the results of the final proration in respect of the Offer have been announced, in each case as promptly as practicable after the expiration of such Offer. If proration of tendered Depositary Shares is required in an Offer, because of the difficulty in determining the number of Depositary Shares validly tendered (including shares tendered by the guaranteed delivery procedures described below in "--Procedures for Tendering"), each Trust expects that it would not be able to announce the final proration factor to commence the exchange for any Depositary Shares of the applicable series until following a Proration Period of approximately five Business Days after the applicable Expiration Date. Preliminary results of the proration required in an Offer (if any) will be announced by press release as promptly as practicable after the applicable Expiration Date. Holders of Depositary Shares may also obtain such preliminary information from the Dealer Manager, the Information Agent or the Exchange Agent and may also be able to obtain such information from their brokers. If proration is required in an Offer, until the final proration factors regarding such Offer are known, the applicable Trust will not issue any Preferred Securities in exchange for Depositary Shares accepted for exchange in its Offer or return Depositary Shares delivered to the Exchange Agent but not tendered or return Depositary Shares tendered but not accepted for exchange because of proration. Such Trust will issue its Preferred Securities in exchange for Depositary Shares accepted for exchange in its Offer and return Depositary Shares delivered to the Exchange Agent but not tendered and return Depositary Shares tendered but not accepted for exchange because of proration as soon as practicable following the Proration Period. EACH OFFER IS INDEPENDENT FROM THE OTHER OFFER. EACH OF THE OFFERS IS, HOWEVER, SUBJECT TO CERTAIN CONDITIONS, AS DESCRIBED HEREIN. In all cases, except to the extent waived by the applicable Trust, delivery of Preferred Securities issued with respect to the Depositary Shares accepted for exchange pursuant to the Offers will be made only after timely receipt by the Exchange Agent of such Depositary Shares (or confirmation of book-entry transfer thereof), a properly completed and duly executed Letter of Transmittal relating to such Depositary Shares and any other documents required thereby. As of the date of this Prospectus, there are outstanding Series D 7.92% Depositary Shares not owned by General Motors. As of the date of this Prospectus, there are outstanding Series G 9.12% Depositary Shares not owned by General Motors. 45 55 This Prospectus, together with the applicable Letter of Transmittal (or Letters of Transmittal), is being sent to all registered holders of Depositary Shares on or about the date of this Prospectus. A Trust shall be deemed to have accepted validly tendered Depositary Shares (or defectively tendered Depositary Shares with respect to which such Trust has waived such defect) when, as and if such Trust has given oral or written notice thereof to the Exchange Agent. The Exchange Agent will act as agent for the tendering holders for the purpose of receiving Depositary Shares from, and remitting Preferred Securities to, tendering holders who are participating in an Offer. Upon the terms and subject to the conditions of each Offer, delivery of the Preferred Securities to tendering holders in each Offer will be made as promptly as practicable following the applicable Expiration Date. If any tendered shares of Depositary Shares are not accepted for exchange because of an invalid tender with respect to an Offer, proration, the occurrence of certain other events set forth herein or otherwise, unless otherwise requested by the Holder thereof under "Special Delivery Instructions" in the applicable Letter of Transmittal, such Depositary Shares will be returned, without expense, to the tendering Holder thereof, as promptly as practicable after the applicable Expiration Date or the Proration Period (if applicable) or the withdrawal or termination of such Offer. Holders of Depositary Shares will not have any appraisal or dissenters' rights under the Delaware General Corporation Law in connection with either Offer. General Motors and each Trust intend to conduct each Offer in accordance with the applicable requirements of the Exchange Act and the rules and regulations of the Commission thereunder. Holders who tender Depositary Shares in an Offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the applicable Letter of Transmittal, transfer taxes with respect to the exchange of Depositary Shares pursuant to such Offer. See "Fees and Expenses; Transfer Taxes." With respect to each Offer, holders tendering Depositary Shares held in global form shall receive Preferred Securities in global form and holders tendering Depositary Shares held directly in certificated form shall receive Preferred Securities in certificated form, in each case unless otherwise specified in the applicable Letter of Transmittal. CONDITIONS TO THE OFFERS Notwithstanding any other provisions of its Offer, or any extension of its Offer, a Trust will not be required to deliver its Preferred Securities in respect of any properly tendered Depositary Shares in its Offer and may terminate its Offer by oral or written notice to the Exchange Agent and the holders of the Depositary Shares tendered in its Offer, or, at its option, may modify or otherwise amend its Offer (other than with respect to the Minimum Distribution Condition) with respect to such Depositary Shares if the condition in clause (a) below is not satisfied at or prior to the applicable Expiration Date or if any of the events specified in clauses (b) through (d) occurs at or prior to the exchange date for such Depositary Shares: (a) tenders by a sufficient number of holders of Depositary Shares to satisfy the Minimum Distribution Condition for its Offer; (b) any action has been taken or threatened, or any statute, rule, regulation, judgment, order, stay, decree or injunction has been promulgated, enacted, entered, enforced or deemed applicable to its Offer, by or before any court or governmental regulatory or administrative agency or authority or tribunal, domestic or foreign, which (i) challenges the making of its Offer, or might directly or indirectly prohibit, prevent, restrict or delay consummation of such Offer, or otherwise and adversely affects in any material manner its Offer or (ii) could materially adversely affect the business, condition (financial or otherwise), income, operations, properties, assets, liabilities or prospects of General Motors and its subsidiaries, taken as a whole, or materially impair the contemplated benefits of its Offer to General Motors, including any such action, statute, rule, regulation, judgment, order, stay, decree or injunction which would constitute a Tax Event with respect to such Trust if it occurred after the applicable Expiration Date; (c) any event has occurred or is likely to occur affecting the business or financial affairs of General Motors that would or might prohibit, prevent, restrict or delay consummation of its Offer or that will, or is 46 56 reasonably likely to, materially impair the contemplated benefits of its Offer or might be material to holders of Depositary Shares in deciding whether to accept its Offer; and (d) any of the following events shall have occurred (i) any general suspension of or limitation on trading in securities on the NYSE or in the over-the-counter market (whether or not mandatory), (ii) any significant adverse change in the price of the Depositary Shares subject to such Offer or in the United States securities or financial markets, (iii) a material impairment in the trading market for debt or equity securities on the NYSE or in the over-the-counter market (whether or not mandatory), (iv) a declaration of a banking moratorium or any suspension of payments in respect of banks by federal or state authorities in the United States (whether or not mandatory), (v) a commencement of a war, armed hostilities or other national or international crisis directly or indirectly relating to the United States, (vi) any limitation (whether or not mandatory) by any governmental authority on, or other event having a reasonable likelihood of affecting, the extension of credit by banks or other lending institutions in the United States, or (vii) any significant adverse change in U.S. securities or financial markets generally or in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or worsening thereof. The foregoing conditions are for the sole benefit of the applicable Trust and General Motors in connection with the applicable Offer and, except for the Minimum Distribution Condition, may be waived by such Trust and General Motors, in whole or in part, in their sole discretion. Any determination made by General Motors or the applicable Trust concerning an event, development or circumstance described or referred to above will be final and binding on all parties with respect to its Offer. EXPIRATION DATES; EXTENSIONS; AMENDMENTS; TERMINATION Each Offer will expire on the applicable Expiration Date. Each Trust expressly reserves the right, as to its Offer, in its sole discretion, subject to applicable law, to (i) terminate its Offer, and not accept for exchange any Depositary Shares tendered in its Offer and promptly return such Depositary Shares upon the failure of any of the conditions specified above in "--Conditions to the Offers," (ii) waive any condition to its Offer (other than the Minimum Distribution Condition) and accept all Depositary Shares previously tendered pursuant to its Offer, (iii) extend the Expiration Date of its Offer and retain all Depositary Shares tendered pursuant to its Offer until the applicable Expiration Date, subject, however, to all withdrawal rights of holders, see "--Withdrawal of Tenders," (iv) amend the terms of its Offer, (v) modify the form of the consideration to be paid pursuant to its Offer, or (vi) not accept for exchange the Depositary Shares tendered pursuant to its Offer at any time on or prior to the Expiration Date for its Offer, for any reason. Any amendment applicable to an Offer will apply to all Depositary Shares tendered pursuant to such Offer. During any extension of an Offer, all Depositary Shares previously tendered pursuant to such Offer and not withdrawn will remain subject to such Offer. If a Trust makes a material change in the terms of its Offer, such Trust will extend its Offer. The minimum period for which a Offer must remain open following material changes in the terms of such Offer or the information concerning such Offer, other than a change in the amount of Depositary Shares sought for exchange in such Offer or an increase or decrease in the consideration offered to holders of Depositary Shares pursuant to such Offer, will depend upon the facts and circumstances, including the relative materiality of the change or information. With respect to a decrease in the number of Depositary Shares sought in an Offer or an increase or decrease in the consideration offered to holders of the Depositary Shares pursuant to such Offer, if required, such Offer will remain open for a minimum of ten (10) Business Days following public announcement of such change. In the case of any amendment, withdrawal or termination of an Offer, a public announcement will be issued no later than 9:00 a.m., Eastern time, on the next business day after the previously scheduled Expiration Date of such Offer. If any Trust withdraws or terminates its Offer, it will give immediate notice to the Exchange Agent, and the Depositary Shares theretofore tendered pursuant to its Offer will be returned promptly to the tendering holders thereof. See "--Withdrawal of Tenders." In order to satisfy the NYSE listing requirements, acceptance of Depositary Shares validly tendered in each Offer is subject to the Minimum Distribution Condition, which condition may not be waived. 47 57 PROCEDURES FOR TENDERING With respect to an Offer, the tender of Depositary Shares by a Holder thereof pursuant to one of the procedures set forth below will constitute an agreement between such Holder and the applicable Trust in accordance with the terms and subject to the conditions set forth herein and in the applicable Letter of Transmittal and such Trust's right to terminate or withdraw its Offer at any time for any reason. EACH HOLDER OF DEPOSITARY SHARES WISHING TO PARTICIPATE IN AN OFFER MUST (I) PROPERLY COMPLETE AND SIGN THE LETTER OF TRANSMITTAL RELATING TO THE SERIES OF DEPOSITARY SHARES SUBJECT TO SUCH OFFER IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN SUCH LETTER OF TRANSMITTAL (EXCEPT WHEN AN AGENT'S MESSAGE IS APPROPRIATE AND UTILIZED), TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, AND DELIVER THE SAME TO THE EXCHANGE AGENT AT ONE OF ITS ADDRESSES SET FORTH ON THE BACK COVER PAGE HEREOF PRIOR TO THE EXPIRATION DATE WITH RESPECT TO SUCH OFFER AND EITHER (A) CERTIFICATES FOR THE DEPOSITARY SHARES BEING TENDERED IN SUCH OFFER MUST BE RECEIVED BY THE EXCHANGE AGENT AT SUCH ADDRESS OR (B) SUCH DEPOSITARY SHARES MUST BE TRANSFERRED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER DESCRIBED BELOW AND A CONFIRMATION OF SUCH BOOK-ENTRY TRANSFER MUST BE RECEIVED BY THE EXCHANGE AGENT, IN EACH CASE PRIOR TO THE APPLICABLE EXPIRATION DATE, OR (II) COMPLY WITH THE GUARANTEED DELIVERY PROCEDURES DESCRIBED BELOW. LETTERS OF TRANSMITTAL, DEPOSITARY SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE AGENT, NOT TO ANY TRUST, GENERAL MOTORS, ANY DEALER MANAGER OR THE INFORMATION AGENT. Special Procedure for Beneficial Owners. Any beneficial owner whose shares of Depositary Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender such Depositary Shares in an Offer should contact such registered Holder promptly and instruct such registered Holder to tender on such beneficial owner's behalf. If such beneficial owner wishes to tender on its own behalf, such owner must, prior to completing and executing the Letter of Transmittal relating to the series of Depositary Shares subject to such Offer and delivering its Depositary Shares, either make appropriate arrangements to register ownership of such Depositary Shares in such owner's name or obtain a properly completed stock power from the registered Holder. The transfer of registered ownership may take considerable time and may not be able to be completed prior to the applicable Expiration Date. THE METHOD OF DELIVERY OF DEPOSITARY SHARES AND ALL OTHER DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER. IF SENT BY MAIL, IT IS RECOMMENDED THAT (1) REGISTERED MAIL, RETURN RECEIPT REQUEST, BE USED, (2) INSURANCE BE OBTAINED, AND (3) THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE APPLICABLE EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE SUCH EXPIRATION DATE. Signature Guarantees. If Depositary Shares tendered in an Offer are registered in the name of the signer of the accompanying Letter of Transmittal and the Preferred Securities to be issued in exchange therefor are to be issued (and any untendered Depositary Shares are to be reissued) in the name of the registered Holder, the signature of such signer need not be guaranteed. If the Depositary Shares tendered in an Offer are registered in the name of someone other than the signer of the accompanying Letter of Transmittal, or if Preferred Securities issued in exchange therefor are to be issued in the name of any person other than the signer of the accompanying Letter of Transmittal, such tendered Depositary Shares must be endorsed or accompanied by written instructions of transfer in form satisfactory to the applicable Trust and duly executed by the registered Holder, and the signature on the endorsement or instrument of transfer must be guaranteed by a financial institution (including most banks, savings and loans associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program or the Stock Exchange Medallion Program (any of the foregoing hereinafter referred to as an "Eligible Institution"). If the Preferred Securities and/or 48 58 the shares of Depositary Shares are not exchanged pursuant to an Offer or are to be delivered to an address other than that of the registered Holder appearing on the register for such Depositary Shares, the signature in the accompanying Letter of Transmittal must be guaranteed by an Eligible Institution. Book-Entry Transfer. Each Trust understands that the Exchange Agent will make a request promptly after the date of this Prospectus to establish accounts with respect to the Depositary Shares tendered in its Offer at a Depository Institution for the purpose of facilitating such Offer, and subject to the establishment thereof, any financial institution that is a participant in a Depository Institution's system may make book-entry delivery of Depositary Shares in such Offer by causing the Depository Institution to transfer such Depositary Shares into the Exchange Agent's account with respect to such Depositary Shares in accordance with such Depository Institution's Automated Tender Offer Program ("ATOP") procedures for such book-entry transfers. However, the exchange for the Depositary Shares so tendered in an Offer will only be made after timely confirmation (a "Book-Entry Confirmation") of such Book-Entry Transfer of Depositary Shares into the Exchange Agent's account with respect to such Offer, and timely receipt by the Exchange Agent of an Agent's Message (as such term is defined in the next paragraph) and any other documents required by the applicable Letter of Transmittal. The term "Agent's Message" means a message, transmitted by a Depository Institution and received by the Exchange Agent and forming a part of a Book-Entry Confirmation, which states that such Depository Institution has received an express acknowledgment from such participant tendering Depositary Shares that is the subject to such Book-Entry Confirmation, that such participant has received and agrees to be bound by the terms of the applicable Letter of Transmittal, and that the applicable Trust may enforce such agreement against such participant. Guaranteed Delivery. If a Holder desires to participate in an Offer and time will not permit the applicable Letter of Transmittal or Depositary Shares to reach the Exchange Agent before the applicable Expiration Date or the procedure for book-entry transfer cannot be completed on a timely basis, a tender may be effected if the Exchange Agent has received at one of its addresses on the back cover page hereof prior to the applicable Expiration Date, a letter, telegram or facsimile transmission from an Eligible Institution setting forth the name and address of the tendering Holder, the name(s) in which the shares of Depositary Shares are registered and, if the shares of Depositary Shares are held in certificated form, the certificate numbers of the Depositary Shares to be tendered in such Offer, and stating that the tender is being made thereby and guaranteeing that within three NYSE trading days after the date of execution of such letter, telegram or facsimile transmission by the Eligible Institution, such Depositary Shares in proper form for transfer, together with a properly completed and duly executed Letter of Transmittal relating to the series of Depositary Shares subject to such Offer (and any other required documents), or, in the case of a Depository Institution, an Agent's Message, will be delivered by such Eligible Institution. Unless the Depositary Shares being tendered by the above-described method are deposited with the Exchange Agent within the time period set forth above (accompanied or preceded by a properly completed Letter of Transmittal relating to the series of Depositary Shares subject to such Offer and any other required documents) or, in the case of a Depository Institution, in accordance with such Depository Institution's ATOP procedures (along with an applicable Letter of Transmittal or an Agent's Message) is received, the offering Trust may, at its option, reject the tender. In addition to the copy being transmitted herewith, copies of the applicable Notice of Guaranteed Delivery which may be used by Eligible Institutions for the purposes described in this paragraph are available from the Exchange Agent and the Information Agent. Miscellaneous. All questions as to the validity, form, eligibility (including time of receipt) and acceptance for exchange of any tender of Depositary Shares in connection with an Offer will be determined by the applicable Trust, whose determination will be final and binding. Each Trust reserves the absolute right to reject any or all tenders not in proper form or the acceptance for exchange of which may, in the opinion of such Trust's counsel, be unlawful. Each Trust also reserves the absolute right to waive any defect or irregularity in the tender of any Depositary Shares in its Offer, and each Trust's interpretation of the terms and conditions of its Offer (including the instructions in the applicable Letter of Transmittal) will be final and binding. None of the Series D Trust, the Series G Trust, General Motors, the Exchange Agent, the Dealer 49 59 Manager, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Tenders of Depositary Shares involving any irregularities will not be deemed to have been made until such irregularities have been cured or waived. Depositary Shares received by the Exchange Agent in connection with an Offer that are not validly tendered and as to which the irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering Holder (or in the case of Depositary Shares tendered by book-entry transfer into the Exchange Agent's account at a Depository Institution, such Depositary Shares will be credited to an account maintained at the Depository Institution designated by the participant therein who so delivered such Depositary Shares), unless otherwise requested by the Holder in the accompanying Letter of Transmittal, as promptly as practicable after the applicable Expiration Date or the withdrawal or termination of the applicable Offer. LETTERS OF TRANSMITTAL The Letter of Transmittal relating to each series of Depositary Shares contains, among other things, the following terms and conditions, which are part of the applicable Offer. The party tendering the Depositary Shares for exchange pursuant to an Offer (the "Transferor") exchanges, assigns and transfers the Depositary Shares to the applicable Trust, and irrevocably constitutes and appoints the Exchange Agent as the Transferor's agent and attorney-in-fact to cause such Depositary Shares to be assigned, transferred and exchanged in such Offer. The Transferor represents and warrants that it has full power and authority to tender, exchange, assign and transfer such Depositary Shares and to acquire the Preferred Securities issuable upon the exchange of such tendered Depositary Shares and that, when such Transferor's shares of Depositary Shares are accepted for exchange, the applicable Trust will acquire good and unencumbered title to such tendered Depositary Shares, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The Transferor also warrants that it will, upon request, execute and deliver any additional documents deemed by such Trust to be necessary or desirable to complete the exchange, assignment and transfer of tendered Depositary Shares or transfer ownership of such Depositary Shares on the account books maintained by the Depository Institution. All authority conferred by the Transferor will survive the death, bankruptcy or incapacity of the Transferor and every obligation of the Transferor shall be binding upon the heirs, legal representatives, successors, assigns, executors and administrators of such Transferor. THERE IS A SEPARATE LETTER OF TRANSMITTAL FOR EACH OFFER. WITHDRAWAL OF TENDERS Tenders of Depositary Shares pursuant to an Offer may be withdrawn at any time prior to the applicable Expiration Date and, unless accepted for exchange by the offering Trust, may be withdrawn at any time after 40 Business Days after the date of this Prospectus. To be effective, a written notice of withdrawal with respect to an Offer delivered by mail, hand delivery or facsimile transmission must be timely received by the Exchange Agent at one of its addresses set forth on the back cover page hereof. The method of notification is at the risk and election of the Holder. Any such notice of withdrawal must specify (i) the Holder named in the applicable Letter of Transmittal as having tendered Depositary Shares to be withdrawn in such Offer, (ii) if the shares of Depositary Shares are held in certificated form, the certificate numbers of the Depositary Shares to be withdrawn, (iii) that such Holder is withdrawing his election to have such Depositary Shares exchanged, (iv) the name of the registered Holder of such Depositary Shares and (v) the series of Depositary Shares tendered. In addition, the notice of withdrawal must be signed by the Holder in the same manner as the original signature on the accompanying Letter of Transmittal (including any required signature guarantees) or be accompanied by evidence satisfactory to the applicable Trust that the person withdrawing the tender has succeeded to the beneficial ownership of the Depositary Shares being withdrawn. The Exchange Agent will return the properly withdrawn Depositary Shares promptly following receipt of notice of withdrawal. If shares of Depositary Shares have been tendered pursuant to the procedure for book-entry transfer, any notice of withdrawal must specify the name and number of the account at a Depository Institution to be credited with the withdrawn Depositary 50 60 Shares and otherwise comply with such Depository Institution procedures. All questions as to the validity of notice of withdrawal, including time of receipt, will be determined by the applicable Trust, and such determination will be final and binding on all parties. Withdrawals of tenders of Depositary Shares may not be rescinded and any Depositary Shares withdrawn will thereafter be deemed not validly tendered for purposes of any Offer. Properly withdrawn Depositary Shares, however, may be retendered by following the procedures therefor described elsewhere herein at any time prior to the applicable Expiration Date. See "--Procedures for Tendering." Upon the terms and subject to the conditions of its Offer, including the Minimum Distribution Condition, each Trust will accept for exchange any and all Depositary Shares that have been validly tendered in its Offer, and not withdrawn prior to the Expiration Date for its Offer. Each Trust expressly reserves the right, in its sole discretion, to delay acceptance for exchange of Depositary Shares tendered under its Offer and the delivery of its Preferred Securities with respect to the Depositary Shares accepted for exchange in its Offer (subject to Rules 13e-4 and 14e-1 under the Exchange Act, which require that General Motors and the applicable Trust consummate such Offer or return the Depositary Shares deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of such Offer), or to amend, withdraw or terminate its Offer, at any time prior to the applicable Expiration Date for any of the reasons set forth in "--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." If a Trust decides, in its sole discretion, to decrease the number of shares of Depositary Shares sought in its Offer or to increase or decrease the consideration offered to holders of Depositary Shares in its Offer, and if such Offer is scheduled to expire less than ten (10) Business Days from and including the date that notice of such increase or decrease is first published, sent or given in the manner specified in "--Expiration Dates; Extensions; Amendments; Termination," then such Offer will be extended for a minimum of ten (10) Business Days from and including the date of such notice. All Depositary Shares not accepted pursuant to an Offer will be returned to the tendering holders at the offering Trust's expense as promptly as practicable following the applicable Expiration Date. EXCHANGE AGENT AND INFORMATION AGENT The First National Bank of Boston has been appointed as Exchange Agent for each of the Offers. The Exchange Agent is: THE FIRST NATIONAL BANK OF BOSTON If delivered by Hand, to: If delivered by Mail, to: If delivered by Overnight Courier, to: Securities Transfer The First National Bank of Boston The First National Bank of Boston & Reporting Services Shareholder Services Division Shareholder Services Division 55 Broadway, Third Floor P.O. Box 9360 Mail Stop 45-02-53 New York, New York 10006 Mail Stop 45-02-53 150 Royall Street Boston, Massachusetts 02205-9360 Canton, Massachusetts 02021
51 61 Georgeson & Company Inc. has been retained as the Information Agent to assist in connection with each of the Offers. Questions and requests for assistance regarding the Offers, requests for additional copies of this Prospectus, the Letters of Transmittal and requests for Notices of Guaranteed Delivery may be directed to the Information Agent. The Information Agent is: (LOGO) Wall Street Plaza New York, New York 10005 Banks and Brokers Call Collect: (212) 440-9800 All Others Call Toll-Free: (800) 223-2064 In connection with each Offer, General Motors will pay the Exchange Agent and Information Agent reasonable and customary fees for their services and will reimburse them for all their reasonable out-of-pocket expenses in connection therewith. DEALER MANAGER; SOLICITING DEALERS Merrill Lynch, Pierce, Fenner & Smith Incorporated, as lead Dealer Manager for the Offers, has agreed to solicit exchanges of Depositary Shares for Preferred Securities. The maximum fee payable by General Motors to the Dealer Manager is approximately $0.125 per Depositary Share validly tendered and accepted for exchange pursuant to the Offers plus any amount that the Dealer Manager may be entitled to pursuant to the next paragraph. General Motors will also reimburse the Dealer Manager for certain reasonable out-of-pocket expenses in connection with the Offers and General Motors and the Trusts will indemnify the Dealer Manager against certain liabilities, including liabilities under the Securities Act. The Dealer Manager engages in transactions with, and from time to time has performed services for, General Motors, including acting as underwriter for the issuance of the Depositary Shares. General Motors will pay to a Soliciting Dealer a solicitation fee for all Depositary Shares validly tendered and accepted pursuant to the Offers of (x) $0.50 per Series D 7.92% Depositary Share ($0.25 per Series D 7.92% Depositary Share with respect to the solicitation of beneficial holders of 10,000 or more such shares) and (y) $0.50 per Series G 9.12% Depositary Share ($0.25 per Series G 9.12% Depositary Share with respect to the solicitation of beneficial holders of 10,000 or more such shares), in each case subject to certain conditions. As used in this Prospectus, "Soliciting Dealer" includes (i) any broker or dealer in securities, including the Dealer Manager in its capacity as a broker or dealer, who is a member of any national securities exchange or of the National Association of Securities Dealers, Inc. (the "NASD"), (ii) any foreign broker or dealer not eligible for membership in the NASD who agrees to conform to the NASD's Rules of Fair Practice in soliciting tenders outside the United States to the same extent as though it were an NASD member, or (iii) any bank or trust company, any one of whom has solicited and obtained a tender pursuant to the Offers. No solicitation fee shall be payable to a Soliciting Dealer with respect to the tender of shares of Depositary Shares by the Holder unless the Letter of Transmittal accompanying such tender designates such Soliciting Dealer as such in the box captioned "Solicited Tenders." Soliciting Dealers will include any of the organizations described in clauses (i), (ii) and (iii) above even when the activities of such organizations in connection with an Offer consist solely of forwarding to clients materials relating to such Offer, including this Prospectus and the applicable Letter of Transmittal, and tendering Depositary Shares as directed by beneficial owners thereof; provided that under no circumstances shall any fee be paid to Soliciting Dealers more than once with respect to any Depositary Share. No Soliciting Dealer is required to make any recommendation to holders of Depositary Shares as to whether to tender or refrain from tendering in an Offer. No assumption is made, in making payment to any Soliciting Dealer, that its activities in connection with an Offer included any activities other than those described above, and for all purposes noted in all materials relating to an Offer, the term "solicit" shall be deemed to mean no more than "processing Depositary Receipts for Depositary Shares tendered" or "forwarding to customers materials regarding an Offer." 52 62 If tendered shares of Depositary Shares are being delivered by book-entry transfer made to an account maintained by the Exchange Agent with Depository Institutions, the Soliciting Dealer must return a Notice of Solicited Tenders (included in the materials provided to brokers and dealers) to the Exchange Agent within three trading days after the applicable Expiration Date in order to receive a solicitation fee. No solicitation fee shall be payable to a Soliciting Dealer in respect of shares of Depositary Shares (i) beneficially owned by such Soliciting Dealer or (ii) registered in the name of such Administrative Dealer unless such shares of Depositary Shares are being held by such Soliciting Dealer as nominee and such shares of Depositary Shares are being tendered for the benefit of one or more beneficial owners identified on the accompanying Letter of Transmittal or the Notice of Solicited Tenders. No solicitation fee shall be payable to the Soliciting Dealer with respect to the tender of Depositary Shares by the Holder of record, for the benefit of the beneficial owner, unless the beneficial owner has designated such Soliciting Dealer. No solicitation fee shall be payable to a Soliciting Dealer if such Soliciting Dealer is required for any reason to transfer any portion of such fee to a tendering Holder (other than itself). No broker, dealer, bank, trust company or fiduciary shall be deemed to be the agent of General Motors, the Series D Trust, the Series G Trust, the Trustees, the Exchange Agent, the Information Agent or the Dealer Manager for purposes of the Offers. Other than as described above, General Motors will not pay any solicitation fees to any broker, dealer, bank, trust company or other person for any Depositary Shares exchanged in connection with the Offers. General Motors will reimburse such persons for customary handling and mailing expenses incurred in connection with the Offers. Additional solicitations may be made by telephone, in person or otherwise by officers and regular employees of General Motors and its affiliates. No additional compensation will be paid to any such officers and employees who engage in soliciting tenders. LISTING AND TRADING OF PREFERRED SECURITIES AND DEPOSITARY SHARES Each of the Series D Preferred Securities and the Series G Preferred Securities constitutes a new issue of securities of the applicable Trust with no established trading market. While application will be made to list each series of the Preferred Securities on the NYSE, there can be no assurance that an active market for either series of the Preferred Securities will develop or be sustained in the future on such exchange. Although the Dealer Manager has indicated to each Trust that it intends to make a market in its Preferred Securities following the applicable Expiration Date as permitted by applicable laws and regulations prior to the commencement of trading on the NYSE, it is not obligated to do so and may discontinue any such market-making at any time without notice. Accordingly, no assurance can be given as to the liquidity of, or trading markets for, either series of the Preferred Securities. In order to satisfy the NYSE listing requirements, acceptance of Depositary Shares validly tendered in each Offer is subject to the Minimum Distribution Condition, which condition may not be waived. Following each applicable Expiration Date, and in accordance with and subject to applicable law, General Motors may from time to time acquire Depositary Shares of the series tendered in the applicable Offer in the open market, by tender offer, subsequent exchange offer or otherwise. To the extent that any such acquisition of Depositary Shares causes the number of outstanding Depositary Shares for any series of Preference Stock to be less than 100,000, the NYSE may delist such Depositary Shares from the NYSE and the trading market for such outstanding Depositary Shares could be adversely affected. General Motors' decision to make such acquisitions is dependent on many factors, including market conditions in effect at the time of any contemplated acquisition. Accordingly, General Motors cannot predict whether and to what extent it may acquire any additional Depositary Shares and the consideration to be paid therefor. In addition, if an Offer is substantially subscribed, there would be a significant risk that round lot holdings of Depositary Shares outstanding following such Offer would be limited. See "Risk Factors and Special Considerations Relating to the Offers--Lack of Established Trading Market for Preferred Securities" and "--Reduced Trading Market for Depositary Shares." 53 63 TRANSACTIONS AND ARRANGEMENTS CONCERNING THE OFFERS Except as described herein, there are no contracts, arrangements, understandings or relationships in connection with either Offer between General Motors or any of its directors or executive officers, the offering Trust or its Trustees and any person with respect to any securities of General Motors or such Trust, including the Junior Subordinated Debentures to be purchased by such Trust, the Depositary Shares subject to such Offer and the Preferred Securities to be issued by such Trust. FEES AND EXPENSES; TRANSFER TAXES The expenses of soliciting tenders of the Depositary Shares in each Offer will be borne by General Motors. For information regarding compensation to be paid to the Dealer Manager and Soliciting Dealers, see "The Offer--Dealer Manager; Soliciting Dealers." The total cash expenditures to be incurred in connection with the Series D Offer, other than fees payable to the Dealer Manager and Soliciting Dealers, but including the expenses of the Dealer Manager, printing, accounting and legal fees, and the fees and expenses of the Exchange Agent, the Information Agent, the Institutional Trustee, the Guarantee Trustee and the Delaware Trustee, in each case with respect to the Series D Offer, are estimated to be approximately $350,000. The total cash expenditures to be incurred in connection with the Series G Offer, other than fees payable to the Dealer Manager and Soliciting Dealers, but including the expenses of the Dealer Manager, printing, accounting and legal fees, and the fees and expenses of the Exchange Agent, the Information Agent, the Institutional Trustee, the Guarantee Trustee and the Delaware Trustee, in each case with respect to the Series G Offer, are estimated to be approximately $585,000. General Motors will pay all transfer taxes, if any, applicable to the exchange of Depositary Shares pursuant to each Offer. If, however, certificates representing Preferred Securities or Depositary Shares not tendered or accepted for exchange in an Offer are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the Depositary Shares tendered or if a transfer tax is imposed for any reason other than the exchange of Depositary Shares pursuant to such Offer, then the amount of any such transfer taxes (whether imposed on the registered Holder or any other persons) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with the applicable Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering Holder. 54 64 PRICE RANGES OF DEPOSITARY SHARES The Depositary Shares are listed and principally traded on the NYSE. The following tables set forth, for each period shown, the high and low sales prices of the Depositary Shares as reported on the NYSE Composite Tape. The Series D 7.92% Preference Stock underlying the Series D 7.92% Depositary Shares was issued on July 15, 1992, and the Series G 9.12% Preference Stock underlying the Series G 9.12% Depositary Shares was issued on December 9, 1991. For recent closing prices of the Depositary Shares, see the cover page of this Prospectus.
SERIES D 7.92% DEPOSITARY SHARES -------------------------------------- DIVIDENDS DECLARED PER HIGH LOW DEPOSITARY SHARE ---- --- ---------------- 1996 1st Quarter............................................... 27.000 26.000 $0.495 2nd Quarter............................................... 26.250 25.375 0.495 3rd Quarter............................................... 26.500 25.375 0.495 4th Quarter............................................... 26.625 25.750 0.495 1997 1st Quarter............................................... 27.000 25.875 0.495 2nd Quarter (through April 11, 1997)...................... 26.375 25.750 -- SERIES G 9.12% DEPOSITARY SHARES -------------------------------------- DIVIDENDS DECLARED PER HIGH LOW DEPOSITARY SHARE ------ ------ ---------------- 1996 1st Quarter............................................... 28.875 27.875 $ 0.57 2nd Quarter............................................... 28.750 27.250 0.57 3rd Quarter............................................... 28.250 27.375 0.57 4th Quarter............................................... 28.875 27.375 0.57 1997 1st Quarter............................................... 28.875 27.750 0.57 2nd Quarter (through April 11, 1997)...................... 28.375 27.625 --
55 65 DESCRIPTION OF THE PREFERRED SECURITIES The Preferred Securities of a Trust will be issued pursuant to the terms of the Declaration relating to such Trust. Each Declaration will be qualified as an indenture under the Trust Indenture Act. The Institutional Trustee of both Trusts, Wilmington Trust Company will act as indenture trustee for the Preferred Securities of each Trust under the applicable Declaration for purposes of compliance with the provisions of the Trust Indenture Act. The terms of each series of the Preferred Securities will include those stated in the applicable Declaration and those made part of such Declaration by the Trust Indenture Act. The following summary of the material terms and provisions of each series of the Preferred Securities does not purport to be complete and is subject to, and qualified in its entirety by reference to, the applicable Declaration, a copy of which is filed as an exhibit to the Registration Statement of which this Prospectus is a part, the Business Trust Act and the Trust Indenture Act. GENERAL The Declaration relating to a Trust authorizes the Regular Trustees of such Trust to issue on behalf of such Trust its Trust Securities, which represent undivided beneficial interests in the assets of such Trust. All of the Common Securities of each Trust will be owned, directly or indirectly, by General Motors. The Common Securities of a Trust rank pari passu, and payments will be made thereon on a pro rata basis, with the Preferred Securities of such Trust, except that upon the occurrence and during the continuance of a Declaration Event of Default in respect of such Trust, the rights of the holders of such Common Securities to receive payment of periodic distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of such Preferred Securities. The Declaration relating to each Trust does not permit the issuance by such Trust of any securities other than its Trust Securities or the incurrence of any indebtedness by such Trust. Pursuant to each Declaration, the Institutional Trustee of each Trust will own the Junior Subordinated Debentures purchased by such Trust for the benefit of the holders of the Trust Securities of such Trust. The payment of distributions out of money held by each Trust, and payments upon redemption of its Preferred Securities or liquidation of such Trust, are guaranteed by General Motors to the extent described under "Description of the Preferred Securities Guarantees". The Preferred Securities Guarantees relating to both Trusts will be held by Wilmington Trust Company, the Guarantee Trustee for each Trust, in each case for the benefit of the holders of the Preferred Securities of the applicable Trust. The Preferred Securities Guarantees do not cover payment of distributions when a Trust does not have sufficient available funds to pay such distributions. In such event, the remedy of a holder of a Trust's Preferred Securities is to vote to direct the applicable Institutional Trustee to enforce such Institutional Trustee's rights under the Junior Subordinated Debentures held by such Trust except in the circumstances in which there is a default in the payment of distributions, including when such Trust does not have sufficient available funds to pay such distribution, in which case the holder may take Direct Action. See "--Voting Rights" and "--Declaration Events of Default." DISTRIBUTIONS Series D Preferred Securities. Distributions on the Series D Preferred Securities will be fixed at a rate per annum of % of the stated liquidation amount of $25 per Series D Preferred Security. Distributions in arrears for more than one quarter will bear interest thereon at the rate per annum of %, compounded quarterly. The term "distribution" as used herein includes any such interest payable unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. In addition, holders of Series D Preferred Securities will be entitled to an additional cash distribution at the rate of 7.92% per annum of the liquidation amount thereof from April 1, 1997 through and including the Series D Expiration Date in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series D 7.92% Depositary Shares accepted for exchange in the Series D Offer, such additional distribution to be made on August 1, 1997 to holders of the Series D Preferred Securities on the record date for such distribution. 56 66 Distributions on the Series D Preferred Securities will be cumulative, will accrue from and including the Series D Accrual Date, and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing August 1, 1997, when, as and if available for payment. Series G Preferred Securities. Distributions on the Series G Preferred Securities will be fixed at a rate per annum of % of the stated liquidation amount of $25 per Series G Preferred Security. Distributions in arrears for more than one quarter will bear interest thereon at the rate per annum of %, compounded quarterly. The term "distribution" as used herein includes any such interest payable unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. In addition, holders of Series G Preferred Securities will be entitled to an additional cash distribution at the rate of 9.12% per annum of the liquidation amount thereof from April 1, 1997 through and including the Series G Expiration Date in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series G 9.12% Depositary Shares accepted for exchange in the Series G Offer, such additional distribution to be made on August 1, 1997 to holders of the Series G Preferred Securities on the record date for such distribution. Distributions on the Series G Preferred Securities will be cumulative, will accrue from and including the Series G Accrual Date, and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing August 1, 1997, when, as and if available for payment. General Motors has the right under the Indenture as it relates to a Trust to defer payments of interest on the Junior Subordinated Debentures held by such Trust by extending the interest payment period from time to time on such Junior Subordinated Debentures, which, if exercised, would defer quarterly distributions on the related Preferred Securities (though such distributions would continue to accrue with interest since interest would continue to accrue on such Junior Subordinated Debentures) during any such Extension Period. Such right to extend the interest payment period for such Junior Subordinated Debentures is limited to a period not exceeding 20 consecutive quarters and such period may not extend beyond the Stated Maturity of such Junior Subordinated Debentures. In the event that General Motors exercises this right, then (i) General Motors shall not declare or pay any dividend on, make a distribution with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock (other than (a) purchases or acquisitions of shares of General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors' capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors' capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (ii) General Motors shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) General Motors shall not make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Prior to the termination of any such Extension Period, General Motors may further extend the interest payment period; provided, that such Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Stated Maturity of such series of Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, General Motors may select a new Extension Period, subject to the above requirements. See "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Periods." If distributions are deferred with respect to any series of Preferred Securities, the 57 67 deferred distributions and accrued interest thereon shall be paid to holders of record of such Preferred Securities as they appear on the books and records of the applicable Trust on the record date next following the termination of such Extension Period. Distributions on the Preferred Securities of a Trust must be paid on the dates payable to the extent that such Trust has funds available for the payment of such distributions in its Property Account. Each Trust's funds available for distribution to the holders of its Preferred Securities will be limited to payments received from General Motors on the underlying Junior Subordinated Debentures held by such Trust. See "Description of the Junior Subordinated Debentures." The payment of distributions out of moneys held by each Trust is guaranteed by General Motors to the extent set forth under "Description of the Preferred Securities Guarantees." Distributions on the Preferred Securities of a Trust will be made to the holders thereof as they appear on the books and records of such Trust on the relevant record dates, which in each case will be the 15th day of the month immediately preceding the month which includes the relevant distribution date. The Declaration relating to each Trust provides that the payment dates or record dates for the Preferred Securities of a Trust shall be the same as the payment dates and record dates for the Junior Subordinated Debentures held by such Trust. Distributions payable on any Preferred Securities that are not punctually paid on any distribution date as a result of General Motors having failed to make the corresponding interest payment on the applicable series of Junior Subordinated Debentures will forthwith cease to be payable to the person in whose name such Preferred Security is registered on the relevant record date, and such defaulted distribution will instead be payable to the person in whose name such Preferred Security is registered on the special record date established by the Regular Trustees of such Trust, which record date shall correspond to the special record date or other specified date determined in accordance with the Indenture; provided, however, that distributions shall not be considered payable on any distribution payment date falling within an Extension Period unless General Motors has elected to make a full or partial payment of interest accrued on such Junior Subordinated Debentures on such distribution payment date. Distributions on the Preferred Securities of each Trust will be paid by such Trust. All distributions paid with respect to the Trust Securities of each Trust shall be paid on a pro rata basis to the holders thereof entitled thereto. If any date on which distributions are to be made on the Preferred Securities is not a Business Day, then payment of the distribution to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. A "Business Day" shall mean any day other than Saturday, Sunday or any other day on which banking institutions in New York City (in the State of New York) or Wilmington, Delaware are permitted or required by any applicable law to close. MANDATORY REDEMPTION Series D Junior Subordinated Debentures. The Series D Junior Subordinated Debentures will mature on , 2012, which date may be shortened as provided herein. Upon the repayment of the Series D Junior Subordinated Debentures at maturity, the proceeds from such repayment shall simultaneously be applied to redeem Series D Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Junior Subordinated Debentures so repaid at a redemption price of $25 per Series D Trust Security, plus accrued and unpaid distributions thereon. Moreover, the Series D Junior Subordinated Debentures are redeemable, in whole or in part, at any time on or after August 1, 1999, at the Series D Optional Prepayment Price or in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event, at the Series D Tax Event Prepayment Price. See "Description of the Junior Subordinated Debentures." Upon the repayment of the Series D Junior Subordinated Debentures prior to the Series D Stated Maturity, the proceeds from such repayment or payment shall simultaneously be applied to redeem Series D Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Junior Subordinated Debentures so redeemed at the applicable Redemption Price; provided, that holders of Series D Trust Securities shall be given not less than 30 nor more than 60 days notice of such redemption. Such notice can be given either before or after repayment of the Series D Junior Subordinated 58 68 Debentures. See "Description of the Junior Subordinated Debentures--Optional Redemptions." In the event that fewer than all of the outstanding Series D Preferred Securities are to be redeemed, the Series D Preferred Securities will be redeemed pro rata. Series G Junior Subordinated Debentures. The Series G Junior Subordinated Debentures will mature on , 2012, which date may be shortened as provided herein. Upon the repayment of the Series G Junior Subordinated Debentures at maturity, the proceeds from such repayment shall simultaneously be applied to redeem Series G Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Junior Subordinated Debentures so repaid at a redemption price of $25 per Series G Trust Security, plus accrued and unpaid distributions thereon. Moreover, the Series G Junior Subordinated Debentures are redeemable, in whole or in part, at any time on or after January 1, 2001, at the Series G Optional Prepayment Price or in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event, at the Series G Tax Event Prepayment Price. See "Description of the Junior Subordinated Debentures." Upon the repayment of the Series G Junior Subordinated Debentures prior to the Series G Stated Maturity, the proceeds from such repayment or payment shall simultaneously be applied to redeem Series G Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Junior Subordinated Debentures so redeemed at the applicable Redemption Price; provided, that holders of Series G Trust Securities shall be given not less than 30 nor more than 60 days notice of such redemption. Such notice can be given either before or after repayment of the Series G Junior Subordinated Debentures. See "Description of the Junior Subordinated Debentures--Optional Redemptions." In the event that fewer than all of the outstanding Series G Preferred Securities are to be redeemed, the Series G Preferred Securities will be redeemed pro rata. TAX EVENT REDEMPTIONS Series D Tax Event. If, prior to August 1, 1999, a Tax Event in respect of the Series D Trust shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series D Junior Subordinated Debentures, at its option, to redeem the Series D Junior Subordinated Debentures, in whole (but not in part), for cash within 90 days following the occurrence of such Tax Event at a prepayment price (the "Series D Tax Event Prepayment Price") equal to (i) % of the principal amount of the Series D Junior Subordinated Debentures if such Series D Junior Subordinated Debentures are prepaid during the period commencing on the Series D Accrual Date through and including July 31, 1997 and (ii) the percentage of the principal amount of the Junior Subordinated Debentures specified below, if such Series D Junior Subordinated Debentures are prepaid during the 12-month period beginning August 1 of the years indicated below plus, in each case, accrued and unpaid interest thereon to the date of prepayment:
YEAR PERCENTAGE ---- ---------- 1997........................................................ % 1998........................................................ 1999 and thereafter......................................... 100
Following such redemption, all Series D Trust Securities shall be redeemed by the Series D Trust at a redemption price equal to the Series D Tax Event Prepayment Price (the "Series D Tax Event Redemption Price"). Series G Tax Event. If, prior to January 1, 2001, a Tax Event in respect of the Series G Trust shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series G Junior Subordinated Debentures, at its option, to redeem the Series G Junior Subordinated Debentures, in whole (but not in part), for cash within 90 days following the occurrence of such Tax Event at a prepayment price (the "Series G Tax Event Prepayment Price") equal to (i) % of the principal amount of the Series G Junior Subordinated Debentures if such Series G Junior Subordinated Debentures are prepaid during the period commencing on the Series G Accrual Date through and including December 31, 1997 and (ii) the percentage of the principal amount of the Junior Subordinated Debentures specified below, if such Series G Junior Subordinated Debentures are prepaid during the 12-month period 59 69 beginning January 1 of the years indicated below plus, in each case, accrued and unpaid interest thereon to the date of prepayment:
YEAR PERCENTAGE ---- ---------- 1998........................................................ % 1999........................................................ 2000........................................................ 2001 and thereafter......................................... 100
Following such redemption, all Series G Trust Securities shall be redeemed by the Series G Trust at a redemption price equal to the Series G Tax Event Prepayment Price (the "Series G Tax Event Redemption Price"). A "Tax Event" means, with respect to a Trust, that the Regular Trustees of such Trust shall have received an opinion of nationally recognized independent tax counsel experienced in such matters to the effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or such pronouncement or decision is announced on or after the date of original issuance of the Junior Subordinated Debentures held by such Trust, there is more than an insubstantial risk that (i) such Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income received or accrued on such Junior Subordinated Debentures, (ii) interest payable by General Motors on such Junior Subordinated Debentures is not, or within 90 days of the date of such opinion will not be, deductible by General Motors, in whole or in part, for United States federal income tax purposes, or (iii) such Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. DISTRIBUTIONS OF THE JUNIOR SUBORDINATED DEBENTURES General Motors will have the right at any time to liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of the Trust Securities of such Trust. If such Junior Subordinated Debentures are distributed to the holders of such Preferred Securities, General Motors will use its best efforts to cause such Junior Subordinated Debentures to be listed on the NYSE or on such other exchange as the related Preferred Securities are then listed. On the date for any distribution of Junior Subordinated Debentures held by a Trust upon dissolution of such Trust, (i) its Preferred Securities will no longer be deemed to be outstanding, (ii) the Depository Institution (as defined herein) for such Trust or its nominee, as the record holder of its Trust Securities, will receive a registered global certificate or certificates representing the Junior Subordinated Debentures to be delivered upon such distribution, and (iii) any certificates representing its Trust Securities not held by such Depository Institution or its nominee will be deemed to represent Junior Subordinated Debentures having an aggregate principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the distribution rate of, and accrued and unpaid interest equal to accrued and unpaid distributions on, such Preferred Securities until such certificates are presented to General Motors or its agent for transfer or reissuance. There can be no assurance as to the market prices for either the Preferred Securities or the Junior Subordinated Debentures that may be distributed in exchange for the Preferred Securities if a dissolution and liquidation of a Trust were to occur. Accordingly, the Preferred Securities or the Junior Subordinated Debentures may trade at a discount to the price that the investor paid to purchase the Preferred Securities offered hereby. 60 70 REDEMPTION PROCEDURES A Trust may not redeem fewer than all of its outstanding Preferred Securities unless all accrued and unpaid distributions have been paid on all of its Preferred Securities for all quarterly distribution periods terminating on or prior to the date of redemption. If a Trust gives a notice of redemption in respect of its Preferred Securities (which notice will be irrevocable), then immediately prior to the close of business on the redemption date, provided that General Motors has paid to such Trust a sufficient amount of cash in connection with the related redemption or maturity of the underlying Junior Subordinated Debentures held by such Trust, distributions will cease to accrue on its Preferred Securities called for redemption, such Preferred Securities shall no longer be deemed to be outstanding and all rights of holders of such Preferred Securities so called for redemption will cease, except the right of the holders of such Preferred Securities to receive the applicable Redemption Price, but without interest on such Redemption Price. Neither such Trust nor its Trustees shall be required to register or cause to be registered the transfer of any Preferred Securities which have been so called for redemption. If any date fixed for redemption of Preferred Securities is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. If General Motors fails to repay Junior Subordinated Debentures held by such Trust on maturity or on the date fixed for a redemption or if payment of the Redemption Price in respect of the related Preferred Securities is improperly withheld or refused and not paid by such Trust or by General Motors pursuant to the applicable Preferred Securities Guarantee described under "Description of the Preferred Securities Guarantee," distributions on such Preferred Securities will continue to accrue from the original redemption date of such Preferred Securities to the date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating such Redemption Price. Neither Trust shall be required to (i) issue, or register the transfer or exchange of, any Trust Securities during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of its Trust Securities and ending at the close of business on the day of the mailing of the relevant notice of redemption and (ii) register the transfer or exchange of its Trust Securities so selected for redemption, in whole or in part, except the unredeemed portion of any Trust Securities being redeemed in part. In the event that fewer than all of the outstanding Preferred Securities of any Trust are to be redeemed, such Preferred Securities will be redeemed pro rata with the Common Securities of such Trust. Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws), General Motors or its subsidiaries may at any time, and from time to time, purchase outstanding Preferred Securities by tender, in the open market or by private agreement. LIQUIDATION DISTRIBUTIONS UPON DISSOLUTION General Motors will have the right at any time to liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of its Trust Securities. General Motors has no present intention to take such action with respect to either Trust. If such Junior Subordinated Debentures are distributed to the holders of the Preferred Securities of such Trust, General Motors will use its best efforts to cause such Junior Subordinated Debentures to be listed on the NYSE or on such other exchange as such Preferred Securities are then listed. In the event of any other voluntary or involuntary liquidation, dissolution, winding-up or termination of a Trust (each, a "Liquidation" with respect to the applicable Trust), the then holders of the Trust Securities of such Trust will be entitled to receive out of the assets of such Trust, after satisfaction of liabilities to creditors, distributions in an amount equal to the aggregate of the stated liquidation amount of $25 per Trust Security plus accrued and unpaid distributions thereon to the date of payment (with respect to such Trust, the "Liquidation Distribution"), unless, in connection with such Liquidation, Junior Subordinated Debentures in 61 71 an aggregate stated principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the distribution rate of, and accrued and unpaid interest equal to accrued and unpaid distributions on, the Trust Securities of such Trust have been distributed on a pro rata basis to the holders of its Trust Securities. If, upon any such Liquidation, the Liquidation Distribution can be paid only in part because such Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the Preferred Securities of such Trust shall have a preference over its Common Securities with regard to such distributions. Pursuant to the Series D Declaration, the Series D Trust shall dissolve (i) on April 11, 2022, the expiration of the term of the Series D Trust, (ii) upon the bankruptcy of General Motors or the Series D Trust, (iii) upon the filing of a certificate of dissolution or its equivalent with respect to General Motors, the filing of a certificate of cancellation with respect to the Series D Trust after obtaining the consent of the holders of at least a majority in liquidation amount of its Trust Securities affected thereby, voting together as a single class to file such certificate of cancellation, or the revocation of the charter of General Motors and the expiration of 90 days after the date of revocation without a reinstatement thereof, (iv) upon the distribution of Series D Junior Subordinated Debentures to the holders of the Series D Preferred Securities, (v) upon the entry of a decree of a judicial dissolution of General Motors or the Series D Trust, or (vi) upon the redemption of all its Trust Securities. Pursuant to the Series G Declaration, the Series D Trust shall dissolve (i) on April 11, 2022, the expiration of the term of the Series G Trust, (ii) upon the bankruptcy of General Motors or the Series G Trust, (iii) upon the filing of a certificate of dissolution or its equivalent with respect to General Motors, the filing of a certificate of cancellation with respect to the Series G Trust after obtaining the consent of the holders of at least a majority in liquidation amount of its Trust Securities affected thereby, voting together as a single class to file such certificate of cancellation, or the revocation of the charter of General Motors and the expiration of 90 days after the date of revocation without a reinstatement thereof, (iv) upon the distribution of Series G Junior Subordinated Debentures to the holders of the Series G Preferred Securities, (v) upon the entry of a decree of a judicial dissolution of General Motors or the Series G Trust, or (vi) upon the redemption of all its Trust Securities. DECLARATION EVENTS OF DEFAULT An event of default under the Indenture with respect to a series of Junior Subordinated Debentures (each, an "Indenture Event of Default" with respect to such Junior Subordinated Debentures) constitutes an event of default under the applicable Declaration with respect to the Trust Securities of the applicable Trust (each, a "Declaration Event of Default" with respect to the applicable Trust); provided, that pursuant to each Declaration, the holder of the Common Securities of such Trust will be deemed to have waived any Declaration Event of Default with respect to such Common Securities until all Declaration Events of Default with respect to the related Preferred Securities have been cured, waived or otherwise eliminated. Until such Declaration Events of Default with respect to such Preferred Securities have been so cured, waived or otherwise eliminated, the Institutional Trustee of such Trust will be deemed to be acting solely on behalf of the holders of its Preferred Securities and only the holders of the Preferred Securities will have the right to direct such Institutional Trustee with respect to certain matters under such Declaration, and therefore under the Indenture. If a Declaration Event of Default with respect to such Preferred Securities is waived by holders of such Preferred Securities, such waiver will also constitute the waiver of such Declaration Event of Default with respect to the related Common Securities for all purposes under such Declaration, without any further act, vote or consent of the holders of such Common Securities. If such Institutional Trustee fails to enforce its rights under the applicable series of Junior Subordinated Debentures after a holder of the related Preferred Securities has made a written request, such holder of record of Preferred Securities may institute a legal proceeding against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure of General Motors to pay interest or principal on the applicable series of Junior Subordinated Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, the redemption date), then a holder of the related series of Preferred Securities 62 72 may institute a Direct Action for enforcement of payment to such holder directly of the principal of, or interest on, Junior Subordinated Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder on or after the respective due date specified in such Junior Subordinated Debentures. In connection with any such Direct Action, General Motors will be subrogated to the rights of such holder of Preferred Securities under the applicable Declaration to the extent of any payment made by General Motors to such holder of Preferred Securities in such Direct Action. The holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Junior Subordinated Debentures. Upon the occurrence of a Declaration Event of Default with respect to a Trust, the Institutional Trustee of such Trust, as the sole holder of the Junior Subordinated Debentures purchased by such Trust, will have the right under the Indenture to declare the principal of and interest on such Junior Subordinated Debentures to be immediately due and payable. General Motors and each Trust are each required to file annually with the Institutional Trustee of such Trust an officer's certificate as to its compliance with all conditions and covenants under the applicable Declaration. VOTING RIGHTS Except as described herein, under the Business Trust Act, the Trust Indenture Act and under "Description of the Preferred Securities Guarantees--Modification of the Preferred Securities Guarantee; Assignment," and as otherwise required by law and the applicable Declaration, the holders of Preferred Securities will have no voting rights. Subject to the requirement of the Institutional Trustee of each Trust obtaining a tax opinion in certain circumstances set forth in the last sentence of this paragraph, the holders of a majority in aggregate liquidation amount of the Preferred Securities of each Trust, voting separately as a class, have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Institutional Trustee for such Trust, or direct the exercise of any trust or power conferred upon such Institutional Trustee under the applicable Declaration, including the right to direct such Institutional Trustee, as holder of the Junior Subordinated Debentures purchased by such Trust, to (i) exercise the remedies available to it under the Indenture as a holder of such Junior Subordinated Debentures, (ii) waive any past Indenture Event of Default that is waivable under the Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all such Junior Subordinated Debentures shall be due and payable or (iv) consent to any amendment, modification or termination of the Indenture or such Junior Subordinated Debentures where such consent shall be required; provided, however, that, where a consent or action under the Indenture would require the consent or act of holders of more than a majority in principal amount of such series of Junior Subordinated Debentures (a "Super-Majority") affected thereby, only the holders of at least such Super-Majority in aggregate liquidation amount of the related Preferred Securities may direct such Institutional Trustee to give such consent or take such action; and provided, further, that where a consent or action under the Indenture is only effective against each holder of Junior Subordinated Debentures of a series who has consented thereto, such consent or action will only be effective against a holder of Preferred Securities who directs such Institutional Trustee to give such consent or take such action. If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures after a holder of record of the related Preferred Securities has made a written request, such holder of record of Preferred Securities may institute a legal proceeding directly against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing with respect to any Trust and such event is attributable to the failure of General Motors to pay interest or principal on the Junior Subordinated Debentures held by such Trust on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a holder of Preferred Securities of such Trust may institute a Direct Action for enforcement of payment to such holder of the principal of, or interest on, such Junior Subordinated Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder on or after the respective due date specified in such Junior Subordinated Debentures. The Institutional Trustee of each Trust shall notify all holders of the Preferred 63 73 Securities of such Trust of any notice of default received from the Debt Trustee with respect to the Junior Subordinated Debentures held by such Trust. Such notice shall state that such Indenture Event of Default also constitutes a Declaration Event of Default. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Institutional Trustee of such Trust shall not take any of the actions described in clauses (i), (ii) or (iii) above unless such Institutional Trustee has obtained an opinion of a nationally recognized tax counsel experienced in such matters to the effect that, as a result of such action, such Trust will not fail to be classified as a grantor trust for United States federal income tax purposes. In the event the consent of the Institutional Trustee of a Trust, as the holder of the Junior Subordinated Debentures purchased by such Trust, is required under the Indenture with respect to any amendment, modification or termination of such Indenture, such Institutional Trustee shall request the direction of the holders of the Trust Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification or termination as directed by a majority in liquidation amount of the Trust Securities of such Trust voting together as a single class; provided, however, that where a consent under the Indenture would require the consent of a Super-Majority, such Institutional Trustee may only give such consent at the direction of the holders of at least the proportion in liquidation amount of the Trust Securities of such Trust which the relevant Super-Majority represents of the aggregate principal amount of the applicable series of Junior Subordinated Debentures outstanding; and provided, further, that where a consent or action under the Indenture is only effective against each holder of Junior Subordinated Debentures who has consented thereto, such consent or action will only be effective against a holder of Preferred Securities who directs such Institutional Trustee to give such consent or take such action. Such Institutional Trustee shall not take any such action in accordance with the directions of the holders of the Trust Securities of such Trust unless such Institutional Trustee has obtained an opinion of a nationally recognized tax counsel experienced in such matters to the effect that for the purposes of United States federal income tax, such Trust will not be classified as other than a grantor trust. A waiver of an Indenture Event of Default will constitute a waiver of the corresponding Declaration Event of Default. Any required approval or direction of holders of Preferred Securities may be given at a separate meeting of holders of Preferred Securities convened for such purpose, at a meeting of all of the holders of Trust Securities or pursuant to written consent. The Regular Trustees of each Trust will cause a notice of any meeting at which holders of Preferred Securities of such Trust are entitled to vote, or of any matter upon which action by written consent of such holders is to be taken, to be mailed to each holder of record of such Preferred Securities. Each such notice will include a statement setting forth the following information: (i) the date of such meeting or the date by which such action is to be taken; (ii) a description of any resolution proposed for adoption at such meeting on which such holders are entitled to vote or of such matter upon which written consent is sought; and (iii) instructions for the delivery of proxies or consents. No vote or consent of the holders of Preferred Securities will be required for a Trust to redeem and cancel its Preferred Securities or distribute Junior Subordinated Debentures held by such Trust in accordance with the applicable Declaration. Notwithstanding that holders of Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Preferred Securities that are owned at such time by General Motors or any entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, General Motors, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Preferred Securities were not outstanding. The procedures by which holders of Preferred Securities may exercise their voting rights are described below. See "--Book-Entry; Delivery and Form." Holders of the Preferred Securities of a Trust will have no rights to appoint or remove the Regular Trustees of such Trust, who may be appointed, removed or replaced solely by General Motors as the holder of all of the Common Securities of such Trust. 64 74 MODIFICATION OF THE DECLARATIONS Each Declaration may be modified and amended if approved by the Regular Trustees (and in certain circumstances the Institutional Trustee and the Delaware Trustee) of the applicable Trust, provided that, if any proposed amendment provides for, or such Regular Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Trust Securities of such Trust, whether by way of amendment to such Declaration or otherwise or (ii) the dissolution, winding-up or termination of such Trust other than pursuant to the terms of such Declaration, then such holders of the Trust Securities voting together as a single class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of at least a majority in liquidation amount of the Trust Securities affected thereby; provided, that, if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or the Common Securities of such Trust, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a majority in liquidation amount of such class of Trust Securities. Notwithstanding the foregoing, no amendment or modification may be made to any Declaration if such amendment or modification would (i) cause the applicable Trust to be classified for purposes of United States federal income taxation as other than a grantor trust, (ii) reduce or otherwise adversely affect the powers of the Institutional Trustee of such Trust or (iii) cause such Trust to be deemed an "investment company" which is required to be registered under the 1940 Act. MERGERS, CONSOLIDATIONS OR AMALGAMATIONS Neither Trust may consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety, to any corporation or other body, except as described below. A Trust may, with the consent of its Regular Trustees and without the consent of the holders of its Trust Securities, its Institutional Trustee or its Delaware Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust organized as such under the laws of any State of the United States; provided, that (i) if such Trust is not the survivor, such successor entity either (a) expressly assumes all of the obligations of such Trust under its Trust Securities or (b) substitutes for its Preferred Securities other securities having substantially the same terms as its Trust Securities (the "Successor Securities"), so long as the Successor Securities rank the same as its Trust Securities rank with respect to distributions and payments upon liquidation, redemption and otherwise, (ii) General Motors expressly acknowledges a trustee of such successor entity possessing the same powers and duties as its Institutional Trustee as the holder of the Junior Subordinated Debentures purchased by such Trust, (iii) its Preferred Securities or any Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or with another organization on which its Preferred Securities are then listed or quoted, (iv) such merger, consolidation, amalgamation or replacement does not cause its Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization, (v) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the holders of its Trust Securities (including any Successor Securities) in any material respect (other than with respect to any dilution of the holders' interest in the new entity), (vi) such successor entity has a purpose identical to that of such Trust, (vii) prior to such merger, consolidation, amalgamation or replacement, General Motors has received an opinion of a nationally recognized independent counsel to such Trust experienced in such matters to the effect that, (a) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the holders of its Trust Securities (including any Successor Securities) in any material respect (other than with respect to any dilution of the holders' interest in the new entity), and (b) following such merger, consolidation, amalgamation or replacement, neither such Trust nor such successor entity will be required to register as an investment company under the 1940 Act and (viii) General Motors guarantees the obligations of such successor entity under the Successor Securities at least to the extent provided by the applicable Preferred Securities Guarantee and the applicable Common Securities Guarantee (as defined herein). Notwithstanding the foregoing, neither Trust shall, except with the consent of holders of 100 percent in liquidation amount of its Trust Securities, 65 75 consolidate, amalgamate, merge with or into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it, if such consolidation, amalgamation, merger or replacement would cause such Trust or the successor entity to be classified as other than a grantor trust for United States federal income tax purposes. BOOK-ENTRY; DELIVERY AND FORM Preferred Securities will be issued in fully registered form. Investors may elect to hold their Preferred Securities directly or, subject to the rules and procedures of a Depository Institution described below, hold their interest in a global certificate (with respect to each series of Preferred Securities, a "Preferred Securities Global Certificate") registered in the name of a Depository Institution or its nominee. However, tendering holders of Depositary Shares held in global form shall initially receive an interest in a Preferred Securities Global Certificate and tendering holders of Depositary Shares held directly in certificated form shall initially receive Preferred Securities in certificated form, in each case unless otherwise specified in the accompanying Letter of Transmittal. See "The Offers--Procedures for Tendering." The laws of some jurisdictions require that certain purchasers of securities take physical delivery of securities in definitive form. Such laws may impair the ability to transfer beneficial interest in a global Preferred Security. A Depository Institution holds securities that its participants ("Participants") deposit with the Depository Institution. A Depository Institution also facilitates the settlement among Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations ("Direct Participants"). A Depository Institution is owned by a number of its Direct Participants and by the NYSE, the American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc. Access to the Depository Institution's system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The rules applicable to a Depository Institution and its Participants are on file with the Commission. Upon issuance of a Preferred Securities Global Certificate, the Depository Institution will credit on its book-entry registration and transfer system the number of Preferred Securities represented by such Preferred Securities Global Certificate to the accounts of institutions that have accounts with the Depository Institution. Ownership of beneficial interests in a Preferred Securities Global Certificate will be limited to Participants or persons that may hold interests through Participants. The ownership interest of each actual purchaser of each Preferred Security ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from the Depository Institution of their purchases, but Beneficial Owners are expected to receive written confirmations providing details of the transactions, as well as periodic statements of their holdings, from the Direct or Indirect Participants through which the Beneficial Owners purchased Preferred Securities. Transfers of ownership interests in the Preferred Securities are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners. A Depository Institution has no knowledge of the actual Beneficial Owners of the Preferred Securities; a Depository Institution's records reflect only the identity of the Direct Participants to whose accounts such Preferred Securities are credited, which may or may not be the Beneficial Owners. The Participants will remain responsible for keeping account of their holdings on behalf of their customers. So long as a Depository Institution, or its nominee, is the owner of a Preferred Securities Global Certificate, a Depository Institution or such nominee, as the case may be, will be considered the sole owner and holder of record of the Preferred Securities represented by such Preferred Securities Global Certificate for all purposes. Conveyance of notices and other communications by a Depository Institution to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial 66 76 Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Redemption notices shall be sent to the Depository Institution. If less than all of the applicable series of the Preferred Securities are being redeemed, the Depository Institution will reduce pro rata (subject to adjustment to eliminate fractional Preferred Securities) the amount of interest of each Direct Participant in such Preferred Securities to be redeemed. Although voting with respect to the Preferred Securities is limited, in those instances in which a vote is required, the Depository Institution will not consent or vote with respect to Preferred Securities. Under its usual procedures, the Depository Institution would mail an Omnibus Proxy to the applicable Trust as soon as possible after the record date. The Omnibus Proxy assigns the Depository Institution's consenting or voting rights to those Direct Participants to whose accounts such Preferred Securities are credited on the record date (identified in a listing attached to the Omnibus Proxy). Distribution payments on Preferred Securities represented by a Preferred Securities Global Certificate will be made by the applicable Trust to the Depository Institution. The Depository Institution's practice is to credit Direct Participants' accounts on the relevant payment date in accordance with their respective holdings shown on a Depository Institution's records unless the Depository Institution has reason to believe that it will not receive payments on such payment date. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices and will be the responsibility of such Participants and not of a Depository Institution, the applicable Trust or General Motors, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of distributions to a Depository Institution is the responsibility of the applicable Trust, disbursement of such payments to Direct Participants is the responsibility of the Depository Institution, and disbursement of such payments to the Beneficial Owners is the responsibility of Direct and Indirect Participants. A Depository Institution may discontinue providing its services as securities depository with respect to Preferred Securities at any time by giving reasonable notice to the applicable Trust. Under such circumstances, if a successor securities depository is not obtained, Preferred Security certificates will be required to be printed and delivered. Additionally, such Trust may decide to discontinue use of the system of book-entry transfers through the Depository Institution (or a successor depository). In that event, certificates for such Preferred Securities will be printed and delivered. The information in this section concerning the Depository Institution and the Depository Institution's book-entry system has been obtained from sources that each Trust and General Motors believe to be reliable, but none of the Trusts nor General Motors takes any responsibility for the accuracy thereof. INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE The Institutional Trustee of each Trust, prior to the occurrence of a default with respect to the Trust Securities of such Trust and after the curing of any defaults that may have occurred, undertakes to perform only such duties as are specifically set forth in the applicable Declaration and, after default, shall exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs. Subject to such provisions, such Institutional Trustee is under no obligation to exercise any of the powers vested in it by the applicable Declaration at the request of any holder of Preferred Securities of such Trust, unless offered reasonable indemnity by such holder against the costs, expenses and liabilities which might be incurred thereby. The holders of such Preferred Securities will not be required to offer such indemnity in the event such holders, by exercising their voting rights, direct such Institutional Trustee to take any action it is empowered to take under the applicable Declaration following a Declaration Event of Default with respect to such Trust. Each Institutional Trustee also serves as trustee under the applicable Preferred Securities Guarantee and the Indenture. General Motors or its affiliates conduct certain banking transactions with the Institutional Trustee and its affiliates in the ordinary course of their business. 67 77 GOVERNING LAW Each Declaration and the related Preferred Securities will be governed by, and construed in accordance with, the internal laws of the State of Delaware. MISCELLANEOUS The Regular Trustees of each Trust are authorized and directed to operate such Trust in such a way so that such Trust will not be required to register as an "investment company" under the 1940 Act or characterized as other than a grantor trust for United States federal income tax purposes. General Motors is authorized and directed to conduct its affairs so that the Junior Subordinated Debentures will be treated as indebtedness of General Motors for United States federal income tax purposes. In this connection, General Motors and the Regular Trustees of each Trust are authorized to take any action, not inconsistent with applicable law, the certificate of trust of such Trust or the articles of incorporation of General Motors, that each of General Motors and such Regular Trustees determine in their discretion to be necessary or desirable to achieve such end, as long as such action does not adversely affect the interests of the holders of the Preferred Securities of such Trust or vary the terms thereof. Holders of the Preferred Securities have no preemptive rights. DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES Set forth below is a summary of information concerning the Preferred Securities Guarantees, each of which will be executed and delivered by General Motors to the applicable Trust for the benefit of the holders from time to time of the Preferred Securities of such Trust. Each Preferred Securities Guarantee will be qualified as an indenture under the Trust Indenture Act. Wilmington Trust Company will act as the Guarantee Trustee under each Preferred Securities Guarantee for purposes of the Trust Indenture Act. The terms of each Preferred Securities Guarantee will be those set forth in such Preferred Securities Guarantee and those made part of such Preferred Securities Guarantee by the Trust Indenture Act. The summary of the material terms of the Preferred Securities Guarantees does not purport to be complete and is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the forms of the Preferred Securities Guarantees, which are filed as exhibits to the Registration Statement of which this Prospectus forms a part, and the Trust Indenture Act. Each Preferred Securities Guarantee will be held by the Guarantee Trustee for the benefit of the holders of the Preferred Securities of the applicable Trust. GENERAL Pursuant to each Preferred Securities Guarantee, General Motors will agree, to the extent set forth therein, to pay in full to the holders of the Preferred Securities issued by the applicable Trust, the Guarantee Payments (as defined herein) (except to the extent paid by such Trust), as and when due, regardless of any defense, right of set-off or counterclaim which such Trust may have or assert. The following payments with respect to Preferred Securities issued by a Trust, to the extent not paid by such Trust (with respect to each Trust, the "Guarantee Payments"), will be subject to the Preferred Securities Guarantee thereon (without duplication): (i) any accrued and unpaid distributions which are required to be paid on such Preferred Securities, to the extent such Trust shall have funds available therefor; (ii) the applicable Redemption Price, to the extent such Trust has funds available therefor with respect to any Preferred Securities called for redemption by such Trust; and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of such Trust (other than in connection with the distribution of Junior Subordinated Debentures held by such Trust to the holders of its Preferred Securities or the redemption of all of its Preferred Securities), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on its Preferred Securities to the date of payment, to the extent such Trust has funds available therefor and (b) the amount of assets of such Trust remaining available for distribution to holders of such Preferred Securities in liquidation of such Trust. General Motors' obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by General Motors to the holders of the applicable Preferred Securities or by causing such Trust to pay such amounts to such holders. 68 78 The Preferred Securities Guarantees will not apply to any payment of distributions except to the extent the applicable Trust shall have funds available therefor. If General Motors does not make interest payments on the Junior Subordinated Debentures held by a Trust, such Trust will not pay distributions on the Preferred Securities issued by such Trust and will not have funds available therefor. With respect to each Trust, the applicable Preferred Securities Guarantee, when taken together with General Motors' obligations under the related Junior Subordinated Debentures, the Indenture and the related Declaration, including its obligations to pay costs, expenses, debts and liabilities of each Trust (other than with respect to the Trust Securities of such Trust), provides a full and unconditional guarantee on a subordinated basis by General Motors of payments due on the Preferred Securities of such Trust. General Motors has also agreed separately to irrevocably and unconditionally guarantee the obligations of each Trust with respect to its Common Securities (with respect to each Trust, the "Common Securities Guarantee") to the same extent as the Preferred Securities Guarantee relating to such Trust, except that upon an event of default under the Indenture, holders of Preferred Securities of such Trust shall have priority over holders of Common Securities of such Trust with respect to distributions and payments on liquidation, redemption or otherwise. CERTAIN COVENANTS OF GENERAL MOTORS In each Preferred Securities Guarantee, General Motors will covenant that, so long as any Preferred Securities issued by the applicable Trust remain outstanding, if there shall have occurred any event that would constitute an event of default under such Preferred Securities Guarantee or the Indenture, or if General Motors has exercised its option to defer interest payments on the applicable Junior Subordinated Debentures by extending the interest payment period and such period or extension thereof shall be continuing, then (i) General Motors shall not declare or pay any dividend on, make a distribution with respect to, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of its capital stock (other than (a) purchases or acquisitions of shares of General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation running pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (ii) General Motors shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors which rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) General Motors shall not make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT Except with respect to any changes which do not adversely affect the rights of holders of the related Preferred Securities (in which case no vote will be required), a Preferred Securities Guarantee may be amended only with the prior approval of the holders of not less than a majority in liquidation amount of the outstanding Preferred Securities issued by the applicable Trust. All guarantees and agreements contained in such Preferred Securities Guarantee shall bind the successors, assigns, receivers, trustees and representatives of General Motors and shall inure to the benefit of the holders of the Preferred Securities of such Trust then outstanding. Except in connection with any merger or consolidation of General Motors with or into another entity or any sale, transfer or lease of General Motors' assets to another entity, each as permitted by the Indenture, General Motors may not assign its rights or delegate its obligations under such Preferred Securities 69 79 Guarantee without the prior approval of the holders of at least a majority in liquidation amount of the outstanding Preferred Securities issued by the applicable Trust. TERMINATION Each Preferred Securities Guarantee will terminate as to the Preferred Securities issued by the applicable Trust (a) upon full payment of the Redemption Price of all Preferred Securities of such Trust, (b) upon distribution of the Junior Subordinated Debentures held by such Trust to the holders of the Trust Securities of such Trust or (c) upon full payment of the amounts payable in accordance with the applicable Declaration upon liquidation of such Trust. Notwithstanding the foregoing, such Preferred Securities Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any holder of Preferred Securities issued by the applicable Trust must restore payment of any sums paid under such Preferred Securities or such Preferred Securities Guarantee. EVENTS OF DEFAULT An event of default under each Preferred Securities Guarantee will occur upon the failure of General Motors to perform any of its payment obligations thereunder. The holders of a majority in liquidation amount of the Preferred Securities to which each Preferred Securities Guarantee relates have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of such Preferred Securities Guarantee or to direct the exercise of any trust or power conferred upon such Guarantee Trustee under such Preferred Securities. Any holder of such Preferred Securities may institute a legal proceeding directly against General Motors to enforce applicable Guarantee Trustee's rights under such Preferred Securities Guarantee, without first instituting a legal proceeding against the applicable Trust, the applicable Guarantee Trustee or any other person or entity. STATUS OF THE PREFERRED SECURITIES GUARANTEES Each Preferred Securities Guarantee will constitute an unsecured obligation of General Motors and will rank (i) subordinate and junior in right of payment to all other liabilities of General Motors, except those made pari passu or subordinate by their terms, (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by General Motors and with any guarantee now or hereafter entered into by General Motors in respect of any preferred or preference stock of any affiliate of General Motors, and (iii) senior to General Motors Common Stock. The terms of the Preferred Securities provide that each holder of Preferred Securities issued by either Trust by acceptance thereof agrees to the subordination provisions and other terms of the applicable Preferred Securities Guarantee. Each Preferred Securities Guarantee will constitute a guarantee of payment and not of collection (that is, the guaranteed party may institute a legal proceeding directly against the guarantor to enforce its rights under such Preferred Securities Guarantee without instituting a legal proceeding against any other person or entity). INFORMATION CONCERNING THE GUARANTEE TRUSTEES The Guarantee Trustee with respect to each Preferred Securities Guarantee, prior to the occurrence of a default with respect to such Preferred Securities Guarantee, undertakes to perform only such duties as are specifically set forth in such Preferred Securities Guarantee and, after default, shall exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs. Subject to such provisions, such Guarantee Trustee is under no obligation to exercise any of the powers vested in it by the applicable Preferred Securities Guarantee at the request of any holder of Preferred Securities to which such Preferred Securities Guarantee relates, unless offered reasonable indemnity against the costs, expenses and liabilities which might be incurred thereby. General Motors or its affiliates conduct certain banking transactions with the Guarantee Trustee and its affiliates in the ordinary course of business. 70 80 GOVERNING LAW Each Preferred Securities Guarantee will be governed by and construed in accordance with the internal laws of the State of New York. DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES Set forth below is a description of the specific terms of each series of the Junior Subordinated Debentures which will be deposited in the applicable Trust as trust assets. The following description of the material terms of the Indenture, dated as of , 1997 (as supplemented with respect to the Series D Junior Subordinated Debentures and the Series G Subordinated Debentures pursuant to the Series D Supplement and the Series G Supplement, respectively, the "Indenture"), between General Motors and Wilmington Trust Company as Trustee (the "Debt Trustee"), does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the description in the Indenture, the form of which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part. Certain capitalized terms used herein are defined in the Indenture. The Indenture provides for the issuance of debentures, notes (including the applicable series of the Junior Subordinated Debentures) or other evidences of indebtedness by General Motors in an unlimited amount from time to time. Each series of the Junior Subordinated Debentures constitutes a separate series under the Indenture. The Series D Junior Subordinated Debentures are issued pursuant to the Indenture, as supplemented by the Series D Supplement. The Series G Junior Subordinated Debentures are issued pursuant to the Indenture, as supplemented by the Series G Supplement. General Motors will have the right at any time to liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of the Trust Securities of such Trust. General Motors has no present intention to take such action with respect to either Trust. If such Junior Subordinated Debentures are distributed to the holders of the Preferred Securities of such Trust, General Motors will use its best efforts to have such Junior Subordinated Debentures listed on the NYSE or on such other national securities exchange or similar organization on which such Preferred Securities are then listed or quoted. GENERAL Each of the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures constitutes unsecured, subordinated obligations of General Motors, limited in aggregate principal amount to the aggregate liquidation preference of (i) the Preferred Securities issued by the applicable Trust in its Offer and (ii) the amount of proceeds received by such Trust from the sale of its Common Securities to General Motors. The Junior Subordinated Debentures are not subject to any sinking fund provision. Series D Junior Subordinated Debentures. The entire principal amount of the Series D Junior Subordinated Debentures will mature and become due and payable, together with any accrued and unpaid interest thereon, if any, on , 2012, subject to the right of General Motors to shorten the maturity date to a date no earlier than August 1, 1999, subject to certain conditions. If Series D Junior Subordinated Debentures are distributed to holders of Series D Preferred Securities in liquidation of such holders' interests in the Series D Trust, such Series D Junior Subordinated Debentures will be so issued in fully registered certificated form in denominations of $25 and integral multiples thereof and may be transferred or exchanged at the offices described below. Series G Junior Subordinated Debentures. The entire principal amount of the Series G Junior Subordinated Debentures will mature and become due and payable, together with any accrued and unpaid interest thereon, if any, on , 2012, subject to the right of General Motors to shorten the maturity date to a date no earlier than January 1, 2001, subject to certain conditions. 71 81 If Series G Junior Subordinated Debentures are distributed to holders of Series G Preferred Securities in liquidation of such holders' interests in the Series G Trust, such Series G Junior Subordinated Debentures will be so issued in fully registered certificated form in denominations of $25 and integral multiples thereof and may be transferred or exchanged at the offices described below. With respect to each series of Junior Subordinated Debentures, payments of principal and interest on the Junior Subordinated Debentures will be payable, the transfer of the Junior Subordinated Debentures will be registrable, and Junior Subordinated Debentures will be exchangeable for Junior Subordinated Debentures of other denominations of a like aggregate principal amount, at the corporate trust office of the Institutional Trustee of the applicable Trust in Wilmington, Delaware; provided, that payment of interest may be made at the option of General Motors by check mailed to the address of the holder entitled thereto or by wire transfer to an account appropriately designated by the holder entitled thereto. Notwithstanding the foregoing, so long as the holder of any Junior Subordinated Debentures is the Institutional Trustee for the applicable Trust, the payment of principal and interest on the Junior Subordinated Debentures held by such Institutional Trustee will be made at such place and to such account as may be designated by such Institutional Trustee. The Indenture does not limit the aggregate principal amount of securities which may be issued thereunder and do not contain provisions that afford holders of either series of Junior Subordinated Debentures protection in the event of a highly leveraged transaction or other similar transaction involving General Motors that may adversely affect such holders. SUBORDINATION The Indenture provides that the Junior Subordinated Debentures are subordinated and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations of General Motors and rank pari passu with and are equivalent to creditor obligations of those holding general unsecured claims not entitled to statutory priority under the United States Bankruptcy Code or otherwise. In addition, no payment may be made of the principal of, premium, if any, or interest on the Junior Subordinated Debentures, or in respect of any redemption, retirement, purchase or other acquisition of any of the Junior Subordinated Debentures, at any time when (i) there is a default in the payment of the principal of, premium, if any, interest on or otherwise in respect of any Senior Indebtedness, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, or (ii) any event of default with respect to any Senior Indebtedness has occurred and is continuing pursuant to which the holders of such Senior Indebtedness (or a trustee on behalf of the holders thereof) have accelerated the maturity thereof. Upon any distribution of assets of General Motors to creditors upon any dissolution, winding-up, liquidation or reorganization, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings, the payment of the principal of, and interest on, the Junior Subordinated Debentures will, to the extent set forth in the Indenture, be subordinated in right of payment to the prior payment in full of all Senior Indebtedness and Other Financial Obligations of General Motors. Upon any payment or distribution of assets of General Motors to creditors upon any liquidation, dissolution, winding-up, reorganization, assignment for the benefit of creditors, marshaling of assets or any bankruptcy, insolvency or similar proceedings of General Motors, the holders of all Senior Indebtedness and the holders of Other Financial Obligations will first be entitled to receive payment in full of all amounts due or to become due thereon before the holders of the Junior Subordinated Debentures will be entitled to receive and retain any payment in respect of the principal of, or interest on, the Junior Subordinated Debentures. The term "Senior Indebtedness" means, with respect to General Motors, (i) the principal, premium, if any, and interest in respect of (a) indebtedness of General Motors for money borrowed and (b) indebtedness evidenced by securities, debentures, bonds or other similar instruments issued by General Motors, (ii) all capital lease obligations of General Motors, (iii) all obligations of General Motors issued or assumed as the deferred purchased price of property, all conditional sale obligations of General Motors and all obligations of General Motors under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business), (iv) all obligations of General Motors for the reimbursement of any letter of credit, banker's acceptance, security purchase facility or similar credit transaction, (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which General Motors is 72 82 responsible or liable as obligor, guarantor or otherwise and (vi) all obligations of the type referred to in clauses (i) through (v) above of other persons secured by any lien on any property or asset of General Motors (whether or not such obligation is assumed by General Motors), except that Senior Indebtedness shall not include (i) the Junior Subordinated Debentures and any such indebtedness that is by its terms subordinated to or ranks pari passu with the Junior Subordinated Debentures and (ii) any indebtedness between and among General Motors or its affiliates, including all other debt securities and guarantees in respect to those debt securities, issued to any other trust, or a trustee of such trust, partnership or other entity affiliated with General Motors that is a financing vehicle of General Motors (a "financing entity") in connection with the issuance by such financing entity of preferred securities or other securities that rank pari passu with, or junior to, the Preferred Securities. The term "Other Financial Obligations" means all obligations of General Motors to make payment pursuant to the terms of financial instruments, such as (i) securities contracts and foreign currency exchange contracts, (ii) derivative instruments, such as swap agreements (including interest rate and foreign exchange rate swap agreements), cap agreements, floor agreements, collar agreements, interest rate agreements, foreign exchange rate agreements, options, commodity futures contracts, commodity option contracts and (iii) in the case of both (i) and (ii) above, similar financial instruments, other than (a) obligations on account of Senior Indebtedness and (b) obligations on account of indebtedness for money borrowed ranking pari passu with or subordinate to the Junior Subordinated Debentures. Upon satisfaction of all claims of all Senior Indebtedness and Other Financial Obligations then outstanding, the rights of the holders of the Junior Subordinated Debentures will be subrogated to the rights of the holders of Senior Indebtedness and Other Financial Obligations of General Motors to receive payments or distributions applicable to Senior Indebtedness and Other Financial Obligations until all amounts owing on the Junior Subordinated Debentures are paid in full. Such Senior Indebtedness and Other Financial Obligations shall continue to be Senior Indebtedness and Other Financial Obligations and be entitled to the benefits of the subordination provisions irrespective of any amendment, modification or waiver of any term of such Senior Indebtedness or Other Financial Obligations. The Indenture does not limit the aggregate amount of Senior Indebtedness or Other Financial Obligations that may be issued or entered into by General Motors. OPTIONAL REDEMPTION Series D Junior Subordinated Debentures. General Motors shall have the right to redeem the Series D Junior Subordinated Debentures, (i) in whole or in part, from time to time, on or after August 1, 1999, at a prepayment price (the "Series D Optional Prepayment Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the redemption date or (ii) in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event, at the Series D Tax Event Prepayment Price specified below; in either case, upon not less than 30 nor more than 60 days notice to holders of the Series D Junior Subordinated Debentures. Notwithstanding anything to the contrary contained herein, General Motors may not redeem fewer than all of the Series D Junior Subordinated Debentures unless all accrued and unpaid interest on all of the Series D Junior Subordinated Debentures has been paid for all quarterly periods terminating on or prior to the date of redemption. If, prior to August 1, 1999, a Tax Event shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series D Junior Subordinated Debentures, at its option to redeem the Series D Junior Subordinated Debentures, in whole (but not in part), for cash within 90 days following the occurrence of such Tax Event at a prepayment price (the "Series D Tax Event Prepayment Price") equal to (i) % of the principal amount of the Series D Junior Subordinated Debentures if prepaid during the period commencing on the Series D Accrual Date through and including July 31, 1997 and (ii) the percentage of the principal amount of the Series D Junior Subordinated Debentures 73 83 specified below, if prepaid during the 12-month period beginning August 1 of the years indicated below plus, in each case, accrued and unpaid interest thereon to the date of prepayment:
YEAR PERCENTAGE ---- ---------- 1997........................................................ % 1998........................................................ 1999 and thereafter......................................... 100
Series G Junior Subordinated Debentures. General Motors shall have the right to redeem the Series G Junior Subordinated Debentures, (i) in whole or in part, from time to time, on or after January 1, 2001, at a prepayment price (the "Series G Optional Prepayment Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the redemption date or (ii) in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event, at the Series G Tax Event Prepayment Price specified below; in either case, upon not less than 30 nor more than 60 days notice to holders of the Series G Junior Subordinated Debentures. Notwithstanding anything to the contrary contained herein, General Motors may not redeem fewer than all of the Series G Junior Subordinated Debentures unless all accrued and unpaid interest on all of the Series G Junior Subordinated Debentures has been paid for all quarterly periods terminating on or prior to the date of redemption. If, prior to January 1, 2001, a Tax Event shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series G Junior Subordinated Debentures, at its option to redeem the Series G Junior Subordinated Debentures, in whole (but not in part), for cash within 90 days following the occurrence of such Tax Event at a prepayment price (the "Series G Tax Event Prepayment Price") equal to (i) % of the principal amount of the Series G Junior Subordinated Debentures if prepaid during the period commencing on the Series G Accrual Date through and including December 31, 1997 and (ii) the percentage of the principal amount of the Series G Junior Subordinated Debentures specified below, if prepaid during the 12-month period beginning January 1 of the years indicated below plus, in each case, accrued and unpaid interest thereon to the date of prepayment:
YEAR PERCENTAGE ---- ---------- 1998........................................................ % 1999........................................................ 2000........................................................ 2001 and thereafter......................................... 100
A "Tax Event" means, with respect to a Trust, that the Regular Trustees of such Trust shall have received an opinion of nationally recognized independent tax counsel experienced in such matters to the effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or such pronouncement or decision is announced on or after the date of original issuance of the Junior Subordinated Debentures purchased by such Trust, there is more than an insubstantial risk that (i) such Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income received or accrued on such Junior Subordinated Debentures, (ii) interest payable by General Motors on such Junior Subordinated Debentures is not, or within 90 days of the date of such opinion will not be, deductible by General Motors, in whole or in part, for United States federal income tax purposes, or (iii) such Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. 74 84 OPTIONS TO CHANGE MATURITY DATES Series D Junior Subordinated Debentures. General Motors will have the right at any time to shorten the maturity of the Series D Junior Subordinated Debentures to a date not earlier than August 1, 1999. Series G Junior Subordinated Debentures. General Motors will have the right at any time to shorten the maturity of the Series G Junior Subordinated Debentures to a date not earlier than January 1, 2001. INTEREST Series D Junior Subordinated Debentures. The Series D Junior Subordinated Debentures shall bear interest at the rate of % per annum from and including the Series D Accrual Date, payable quarterly on February 1, May 1, August 1 and November 1 of each year (each, a "Series D Interest Payment Date"), commencing August 1, 1997, to the person in whose name such Series D Junior Subordinated Debentures is registered on the 15th day of January, April, July and October prior to the applicable Series D Interest Payment Date. The Series D Junior Subordinated Debentures will also accrue interest at the rate of 7.92% per annum of the principal amount thereof from April 1, 1997 through and including the Series D Expiration Date, payable on August 1, 1997 to holders of the Series D Junior Subordinated Debentures on the record date for such distribution. No deferral of interest will be permitted with respect to interest accruing from April 1, 1997 through the Series D Expiration Date. Series G Junior Subordinated Debentures. The Series G Junior Subordinated Debentures shall bear interest at the rate of % per annum from and including the Series G Accrual Date, payable quarterly on February 1, May 1, August 1 and November 1 of each year (each, a "Series G Interest Payment Date"), commencing August 1, 1997, to the person in whose name such Series G Junior Subordinated Debentures is registered on the 15th day of January, April, July and October prior to the applicable Series G Interest Payment Date. The Series D Interest Payment Date and the Series G Interest Payment Date are each an "Interest Payment Date" and together constitute the "Interest Payment Dates." The Series G Junior Subordinated Debentures will also accrue interest at the rate of 9.12% per annum of the principal amount thereof from April 1, 1997 through and including the Series G Expiration Date, payable on August 1, 1997 to holders of the Series G Junior Subordinated Debentures on the record date for such distribution. No deferral of interest will be permitted with respect to interest accruing from April 1, 1997 through the Series G Expiration Date. General. The amount of interest payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. The amount of interest payable for any period shorter than a full quarterly period for which interest is computed, will be computed on the basis of the actual number of days elapsed per 30-day month. In the event that any date on which interest is payable on any Junior Subordinated Debentures is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, then such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. OPTIONS TO EXTEND INTEREST PAYMENT PERIODS So long as General Motors shall not be in default in the payment of interest on a series of Junior Subordinated Debentures, General Motors shall have the right at any time, and from time to time, during the term of such Junior Subordinated Debentures to defer payments of interest by extending the interest payment period for a period not exceeding 20 consecutive quarters or extending beyond the Stated Maturity of such Junior Subordinated Debentures, at the end of which Extension Period, General Motors shall pay all interest then accrued and unpaid together with interest thereon compounded quarterly at the rate specified for such Junior Subordinated Debentures to the extent permitted by applicable law; provided, that during any such Extension Period, General Motors shall not (i) declare or pay any dividend on, make any distribution with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to any of its capital stock 75 85 (other than (a) purchases or acquisitions of shares of General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors' capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors' capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (ii) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Prior to the termination of any such Extension Period, General Motors may further defer payments of interest by extending the interest payment period; provided, however, that, such Extension Period, including all such previous and further extensions, may not exceed 20 consecutive quarters or beyond the Stated Maturity of such Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, General Motors may commence a new Extension Period with respect to such Junior Subordinated Debentures, subject to the terms set forth in this section. No interest during an Extension Period, except at the end thereof, shall be due and payable. General Motors has no present intention of exercising its right to defer payments of interest by extending the interest payment period on the Junior Subordinated Debentures. If the applicable Institutional Trustee shall be the sole holder of the Junior Subordinated Debentures, General Motors shall give the Regular Trustees of the applicable Trust and such Institutional Trustee notice of its selection of such Extension Period one Business Day prior to the earlier of (i) the date distributions on the applicable Preferred Securities are payable or (ii) the date such Regular Trustees are required to give notice to the NYSE (or other applicable self-regulatory organization) or to holders of such Preferred Securities of the record date or the date such distribution is payable. Such Institutional Trustee shall give notice of General Motors' selection of such Extension Period to the holders of the applicable Preferred Securities. If the applicable Institutional Trustee shall not be the sole holder of such Junior Subordinated Debentures, General Motors shall give the holders of such Junior Subordinated Debentures notice of its selection of such Extension Period ten Business Days prior to the earlier of (i) the applicable Interest Payment Date or (ii) the date upon which General Motors is required to give notice to the NYSE (or other applicable self-regulatory organization) or to holders of such Junior Subordinated Debentures of the record or payment date of such related interest payment. ADDITIONAL INTEREST If, at any time while the Institutional Trustee of a Trust is the holder of any of the Junior Subordinated Debentures purchased by such Trust, such Trust or such Institutional Trustee shall be required to pay any taxes, duties, assessments or governmental charges of whatever nature (other than withholding taxes) imposed by the United States, or any other taxing authority, then, in any such case, General Motors will pay as additional interest on the applicable series of Junior Subordinated Debentures such additional amounts as shall be required so that the net amounts received and retained by such Trust and by such Institutional Trustee after paying any such taxes, duties, assessments or other governmental charges will be not less than the amounts such Trust and such Institutional Trustee would have received had no such taxes, duties, assessments or other governmental charges been imposed. PROPOSED TAX LEGISLATION On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget Proposal, the United States Treasury Department proposed legislation that would, among other things, deny an issuer a deduction for United States federal income tax purposes for the payment of interest on instruments with characteristics 76 86 similar to the Junior Subordinated Debentures. If the proposed legislation were enacted in its current form, it is not expected to apply to the Junior Subordinated Debentures since the proposed effective date for this provision is the date of first committee action. There can be no assurances, however, that the proposed legislation, if enacted, or similar legislation enacted after the date hereof would not adversely affect the tax treatment of the Junior Subordinated Debentures, resulting in a Tax Event in respect of either or both Trusts, which would permit General Motors to cause a redemption of the Preferred Securities at the applicable Tax Event Redemption Price by electing to prepay the Junior Subordinated Debentures at the applicable Tax Event Prepayment Price. See "Description of the Preferred Securities--Tax Event Redemptions." INDENTURE EVENTS OF DEFAULT If an Indenture Event of Default shall occur and be continuing, the applicable Institutional Trustee, as the holder of the Junior Subordinated Debentures purchased by the applicable Trust, will have the right to declare the principal of and the interest on such Junior Subordinated Debentures and any other amounts payable under the Indenture to be forthwith due and payable and to enforce its other rights as a creditor with respect to such Junior Subordinated Debentures. The Indenture provides that any one or more of the following described events which has occurred and is continuing constitutes an "Indenture Event of Default" with respect to a series of the Junior Subordinated Debentures to which the Indenture relates: (a) default for 30 days in payment of any installment of interest on such Junior Subordinated Debentures when due; provided, however, that a valid extension of the interest payment period by General Motors shall not constitute a default in the payment of interest for this purpose; or (b) default in payment of principal and premium, if any, on such Junior Subordinated Debentures when due either at maturity, upon redemption, by declaration or otherwise; or (c) default by General Motors in the performance of any other of the covenants or agreements with respect to such Junior Subordinated Debentures in such Indenture which shall not have been remedied for a period of 90 days after notice; or (d) certain events of bankruptcy, insolvency or reorganization of General Motors; or (e) the voluntary or involuntary dissolution, winding-up or termination of the applicable Trust, except in connection with the distribution of such Junior Subordinated Debentures to the holders of such Trust Securities in liquidation of the Trust, the redemption of all of the Trust Securities of such Trust, or certain mergers, consolidations or amalgamations, each as permitted by the applicable Declaration. The Indenture provides that, if an Indenture Event of Default shall have occurred and be continuing with respect to a series of Junior Subordinated Debentures, either the Debt Trustee or the holders of not less than 25 percent in aggregate principal amount of the applicable series of Junior Subordinated Debentures then outstanding may declare the principal of all Junior Subordinated Debentures of such series to be due and payable immediately. The holders of a majority in aggregate outstanding principal amount of Junior Subordinated Debentures of such series may annul such declaration and waive the default if the default (other than the non-payment of the principal of Junior Subordinated Debentures of such series which has become due solely by such acceleration) has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the applicable Debt Trustee. With respect to each Trust, an Indenture Event of Default also constitutes a Declaration Event of Default. The holders of Preferred Securities in certain circumstances have the right to direct the applicable Institutional Trustee to exercise its rights as the holder of the related Junior Subordinated Debentures. See "Description of the Preferred Securities--Declaration Events of Default" and "--Voting Rights." If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures after a holder of record of Preferred Securities has made a written request, such holder of record of such Preferred Securities may institute a legal proceeding directly against General Motors to enforce such Institutional Trustee's rights 77 87 under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of General Motors to pay interest or principal on such Junior Subordinated Debentures on the date such interest or principal is otherwise payable, General Motors acknowledges that a holder of the related Preferred Securities may then institute a Direct Action for payment on or after the respective due date specified in such Junior Subordinated Debentures. Notwithstanding any payments made to such holder of Preferred Securities by General Motors in connection with a Direct Action, General Motors shall remain obligated to pay the principal of or interest on such Junior Subordinated Debentures held by the applicable Trust or the Institutional Trustee of such Trust, and General Motors shall be subrogated to the rights of the holder of such Preferred Securities with respect to payments on such Preferred Securities to the extent of any payments made by General Motors to such holder in any Direct Action. Except as provided in the preceding sentence and in the Preferred Securities Guarantee, the holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of such Junior Subordinated Debentures. CERTAIN COVENANTS OF GENERAL MOTORS If (i) there shall have occurred any event that would constitute an Indenture Event of Default under the Indenture with respect to a series of the Junior Subordinated Debentures or (ii) General Motors shall be in default with respect to its payment of any obligations under the applicable Preferred Securities Guarantee or the applicable Common Securities Guarantee or (iii) General Motors shall have given notice of its election to defer payments of interest on the applicable series of the Junior Subordinated Debentures by extending the interest payment period and such period, or any extension thereof, shall be continuing, then (a) General Motors shall not declare or pay any dividend on, make any distributions with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock (other than (x) purchases or acquisitions or shares of General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to such Junior Subordinated Debentures, such as the other series of Junior Subordinated Debentures), (y) issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (z) the purchase of fractional interests in shares of General Motors capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (b) General Motors shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors which rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (c) General Motors shall not make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). For so long as any such Trust Securities remain outstanding, General Motors will covenant (i) to directly or indirectly maintain 100 percent ownership of the Common Securities of the applicable Trust; provided, however, that any permitted successor of General Motors under the Indenture may succeed to General Motors' ownership of such Common Securities, (ii) to use its reasonable efforts to cause such Trust (a) to remain a statutory business trust, except in connection with the distribution of the related Junior Subordinated Debentures to the holders of such Trust Securities in liquidation of such Trust, the redemption of all of such Trust Securities of the Trust, or certain mergers, consolidations or amalgamations, each as permitted by the Declaration relating to such Trust, and (b) to otherwise continue not to be treated as an association taxable as a corporation or a partnership for United States federal income tax purposes and (iii) to use its reasonable efforts to cause each holder of such Trust Securities to be treated as owning an undivided beneficial interest in such Junior Subordinated Debentures. 78 88 BOOK-ENTRY AND SETTLEMENT If any Junior Subordinated Debentures are distributed to holders of Trust Securities (see "Description of the Preferred Securities"), such Junior Subordinated Debentures will be issued in fully registered form. In such event, investors may elect to hold their Junior Subordinated Debentures directly or, subject to the rules and procedures of a Depository Institution, hold interests in a global certificate registered in the name of a Depository Institution or its nominee. For a description of a Depository Institution and a Depository Institution's book-entry system, see "Description of the Preferred Securities--Book-Entry; Delivery and Form." As of the date of this Prospectus, the description herein of a Depository Institution's book-entry system and Depository Institution's practices as they relate to purchases, transfers, notices and payments with respect to the Preferred Securities apply in all material respects to any Junior Subordinated Debentures registered in the name of and held by a Depository Institution or its nominee. MODIFICATION OF THE INDENTURE The Indenture contains provisions permitting General Motors and the Debt Trustee, with the consent of the holders of not less than a majority in principal amount of Junior Subordinated Debentures of all series affected by such modification at the time related outstanding, and, in the case of such Junior Subordinated Debentures, the holders of a majority in aggregate liquidation amount of the related Preferred Securities, to modify the Indenture (as it relates to such series of Junior Subordinated Debentures) or the rights of the holders of such Junior Subordinated Debentures; provided that no such modification shall, without the consent of the holders of each Junior Subordinated Debenture (and each Preferred Security, if applicable) affected thereby, (i) extend the fixed maturity of such Junior Subordinated Debentures, or reduce the principal amount thereof or any premium thereon, or reduce any amount payable on redemption thereof, or reduce the rate or extend the time of payment of interest thereon, or make the principal of, or interest or premium on, such Junior Subordinated Debentures payable in any coin or currency other than that provided in such Junior Subordinated Debentures, or impair or affect the right of any holder of the applicable series of Junior Subordinated Debentures to institute suit for the payment thereof or the right of prepayment, if any, at the option of the holder, (ii) reduce the aforesaid percentage of Junior Subordinated Debentures the consent of the holders of which is required for any such modification or (iii) otherwise materially adversely affect the interest of the holders of any series of Junior Subordinated Debentures. DEFEASANCE AND DISCHARGE The Indenture provides that General Motors, at General Motors' option: (i) will be discharged from any and all obligations in respect of a series of the Junior Subordinated Debentures (except for certain obligations to register the transfer or exchange of such Junior Subordinated Debentures, replace stolen, lost or mutilated Junior Subordinated Debentures, maintain paying agencies and hold moneys for payment in trust) or (ii) need not comply with certain restrictive covenants of the Indenture with respect to such Junior Subordinated Debentures (including those described herein under "Certain Covenants of General Motors"), in each case if General Motors deposits, in trust with the Debt Trustee or a defeasance agent, money or United States government obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, in an amount sufficient to pay all the principal of, and interest and premium, if any, on, such Junior Subordinated Debentures on the dates such payments are due in accordance with the terms of such Junior Subordinated Debentures. To exercise any such option, General Motors is required to deliver to the Debt Trustee and the applicable defeasance agent, if any, an opinion of counsel to the effect that (a) the deposit and related defeasance would not cause the holders of such Junior Subordinated Debentures to recognize income, gain or loss for United States federal income tax purposes and, in the case of a discharge pursuant to clause (i), such opinion shall be accompanied by a private letter ruling to that effect received by General Motors from the United States Internal Revenue Service or a revenue ruling pertaining to a comparable form of transaction to that effect published by the United States Internal Revenue Service, and (b) if listed on any national securities exchange, such Junior Subordinated Debentures would not be delisted from such exchange as a result of the exercise of such option. 79 89 GOVERNING LAW The Indenture and each series of the Junior Subordinated Debentures issued thereby will be governed by, and construed in accordance with, the internal laws of the State of New York. MISCELLANEOUS The Indenture will provide that General Motors will pay all fees and expenses related to (i) the offering of the Trust Securities and the Junior Subordinated Debentures, (ii) the organization, maintenance and dissolution of the Trusts, (iii) the retention of the Regular Trustees of such Trust and (iv) the enforcement by the Institutional Trustee of such Trust of the rights of the holders of such Trust's Preferred Securities. General Motors will have the right at all times to assign any of its respective rights or obligations under the Indenture to a direct or indirect wholly owned subsidiary of General Motors; provided that, in the event of any such assignment, General Motors will remain liable for all of their respective obligations. Subject to the foregoing, the Indenture will be binding upon and inure to the benefit of the parties thereto and their respective successors and assigns. The Indenture provides that it may not otherwise be assigned by the parties thereto. 80 90 DESCRIPTION OF THE PREFERENCE STOCKS AND DEPOSITARY SHARES The summary of the terms of the Preference Stocks and the Depositary Shares set forth below does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the provisions of General Motors' Restated Certificate of Incorporation, as amended (the "General Motors Certificate of Incorporation"), and the Certificate of Designation for each series of Preference Stock and the Deposit Agreement for each series of Depositary Shares. Whenever defined terms in the applicable Deposit Agreement are referred to in this "Description of the Preference Stocks and Depositary Shares," such defined terms are incorporated by reference herein. PREFERENCE STOCKS General Motors currently has outstanding three series of preference stock (collectively, "General Motors Preference Stock"): Series B 9 1/8% Preference Stock ("Series B 9 1/8% Preference Stock"), Series D 7.92% Preference Stock and Series G 9.12% Preference Stock. Each series of the General Motors Preference Stock ranks junior to General Motors' preferred stock ("General Motors Preferred Stock"), if any were outstanding, and ranks senior to General Motors Common Stock with respect to payment of dividends and distributions in liquidation. Interests in each of such series of General Motors Preference Stock are held by the public in the form of depositary shares, each of which represents a fractional interest in one share of such General Motors Preference Stock. The fractional interest which a single depositary share represents in relation to outstanding shares of the corresponding series of General Motors Preference Stock is as follows: each Series B 9 1/8% Depositary Share, $25.00 per share stated value, represents a one-fourth (0.25) interest in one share of Series B 9 1/8% Preference Stock, $100.00 per share stated value; each Series D 7.92% Depositary Share, $25.00 per share stated value, represents a one-fourth (0.25) interest in one share of Series D 7.92% Preference Stock, $100.00 per share stated value; and each Series G 9.12% Depositary Share, $25.00 per share stated value, represents a one-fourth (0.25) interest in one share of Series G 9.12% Preference Stock, $100.00 per share stated value. THE OFFERS BEING MADE HEREBY RELATE ONLY TO THE SERIES D 7.92% DEPOSITARY SHARES AND THE SERIES G 9.12% DEPOSITARY SHARES. NO OFFER IS BEING MADE FOR ANY SERIES B 9 1/8% DEPOSITARY SHARES. On April 14, 1997, the following shares of the Preference Stocks were outstanding: 1,517,477 shares of Series D 7.92% Preference Stock, represented by 6,069,909 Series D 7.92% Depositary Shares, and 2,519,974 shares of Series G 9.12% Preference Stock, represented by 10,079,899 Series G 9.12% Depositary Shares. The following discussion of the Series D 7.92% Preference Stock and the Series G 9.12% Preference Stock is based on shares of General Motors Preference Stock rather than the corresponding Depositary Shares. Series D 7.92% Preference Stock Dividends. Subject to the rights of the holders of General Motors Preferred Stock (if any), dividends will be paid on the outstanding shares of Series D 7.92% Preference Stock when, as and if declared by the General Motors Board out of General Motors' assets legally available therefor. Dividends may be subject to restrictions contained in any future debt agreements of General Motors and to limitations contained in future series or classes of General Motors Preferred Stock or General Motors Preference Stock. Holders of shares of Series D 7.92% Preference Stock will be entitled to receive cumulative cash dividends, at the annual rate of 7.92% of the per share stated value (equivalent to $7.92 per annum per share of Series D 7.92% Preference Stock), payable quarterly for each of the quarters ending March, June, September and December of each year, payable in arrears on the first day that is not a legal holiday of each succeeding May, August, November and February, respectively. Each such dividend will be paid to holders of record on each record date, which shall be not less than 10 nor more than 50 days preceding the payment date, as fixed by the General Motors Board. Dividends on the shares of Series D 7.92% Preference Stock, whether 81 91 or not declared, will be cumulative from the date of original issue of the shares of Series D 7.92% Preference Stock. The amount of dividends payable for any period shorter than a full quarterly dividend period will be determined on the basis of a 360-day year consisting of twelve 30-day months. Accrued but unpaid dividends will not bear interest. Preferential dividends will accrue whether or not General Motors has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. Dividends accumulate to the extent they are not paid on the dividend payment date following the calendar quarter for which they accrue. Accumulated preferential dividends will not bear interest. Dividends will not be paid on any class of General Motors Common Stock or other stock ranking junior to the shares of Series D 7.92% Preference Stock (other than a dividend payable in shares of any class of General Motors Common Stock) and General Motors will not redeem, repurchase or otherwise acquire any shares of General Motors Common Stock or other stock ranking junior to the shares of Series D 7.92% Preference Stock (other than a redemption or purchase of shares of General Motors Common Stock made in connection with employee incentive or benefit plans of General Motors or its subsidiaries), unless the full preferential dividends accumulated on all outstanding shares of Series D 7.92% Preference Stock have been paid. Dividends will not be declared on any series of General Motors Preference Stock for any prior dividend payment period unless there shall have been declared on all outstanding shares of General Motors Preference Stock ranking on a parity with such series, in respect of all dividend payment periods of such parity stock terminating with or before such prior dividend payment period, like proportionate dividends determined ratably in proportion to the respective preferential dividends accumulated to date on such series and the dividends accumulated on all such outstanding parity General Motors Preference Stock. Conversion. The shares of Series D 7.92% Preference Stock are not convertible into shares of any other class of capital stock of General Motors. Redemption. The shares of Series D 7.92% Preference Stock may not be redeemed prior to August 1, 1999. On or after August 1, 1999, General Motors may, at its option, on not less than 35 nor more than 60 days notice, redeem the shares of Series D 7.92% Preference Stock, as a whole or in part, at any time or from time to time, for cash in an amount equal to $100 per share of Series D 7.92% Preference Stock, plus an amount equal to all dividends accrued and unpaid thereon to the date fixed for redemption. If less than all outstanding shares of Series D 7.92% Preference Stock are to be redeemed, shares to be redeemed will be selected by General Motors by lot or pro rata or by any other method determined by General Motors in its sole discretion to be equitable. Holders of shares of Series D 7.92% Preference Stock have no right to require redemption of such shares. Liquidation Preference. In the event of the liquidation, dissolution or winding up of the business of General Motors, whether voluntary or involuntary, the holders of shares of Series D 7.92% Preference Stock will be entitled to the liquidation preference described below, after the holders of General Motors Preferred Stock (if any), receive the full preferential amounts to which they are entitled and before any distribution to holders of General Motors Common Stock. The holders of the shares of Series D 7.92% Preference Stock will be entitled to receive for each share $100 plus an amount equal to all dividends accrued and unpaid thereon to the date of final distribution to such holders (subject to the right of the holders of record of any shares of Series D 7.92% Preference Stock on a record date for payment of dividends thereon to receive a dividend payable on the date of final distribution), but such holders shall not be entitled to any further payment. If there are insufficient assets to permit full payment to holders of the shares of Series D 7.92% Preference Stock and the holders of any other series of General Motors Preference Stock which is on parity with the shares of Series D 7.92% Preference Stock as to liquidation rights, then the holders of the shares of Series D 7.92% Preference Stock and such other shares shall be paid ratably in proportion to the full distributable amounts to which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up. Voting. The shares of Series D 7.92% Preference Stock do not entitle holders thereof to voting rights, except (i) with respect to any amendment or alteration of any provision of the General Motors Certificate of Incorporation which would adversely affect the powers, preferences or special rights of the shares of Series D 82 92 7.92% Preference Stock, which requires the prior approval of the holders of at least two-thirds of the outstanding shares of Series D 7.92% Preference Stock, and (ii) in the event General Motors fails to pay accumulated preferential dividends on the shares of Series D 7.92% Preference Stock in full for any six quarterly dividend payment periods, whether or not consecutive, and all such dividends remain unpaid (a "Preferential Dividend Default"), or as required by law. In the event of a Preferential Dividend Default, the number of directors of General Motors will be increased by two and the holders of the outstanding shares of Series D 7.92% Preference Stock, voting together as a class with all other series of General Motors Preference Stock ranking junior to or on a parity with the shares of Series D 7.92% Preference Stock and then entitled to vote on the election of such directors, will be entitled to elect such two additional directors until the full dividends accumulated on all outstanding shares of Series D 7.92% Preference Stock have been paid. Series G 9.12% Preference Stock Dividends. Subject to the rights of the holders of General Motors Preferred Stock (if any), dividends will be paid on the outstanding shares of Series G 9.12% Preference Stock when, as and if declared by the General Motors Board out of General Motors' assets legally available therefor. Dividends may be subject to restrictions contained in any future debt agreements of General Motors and to limitations contained in future series or classes of General Motors Preferred Stock or General Motors Preference Stock. Holders of shares of Series G 9.12% Preference Stock will be entitled to receive cumulative cash dividends, at the annual rate of 9.12% of the per share stated value (equivalent to $9.12 per annum per share of Series G 9.12% Preference Stock), payable quarterly for each of the quarters ending March, June, September, and December of each year, payable in arrears on the first day that is not a legal holiday of each succeeding May, August, November and February, respectively. Each such dividend will be paid to holders of record on each record date, which shall be not less than 10 nor more than 50 days preceding the payment date, as fixed by the General Motors Board. Dividends on the shares of Series G 9.12% Preference Stock, whether or not declared, will be cumulative from the date of original issue of the shares of Series G 9.12% Preference Stock. The amount of dividends payable for any period shorter than a full quarterly dividend period will be determined on the basis of a 360-day year consisting of twelve 30-day months. Accrued but unpaid dividends will not bear interest. Preferential dividends will accrue whether or not General Motors has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. Dividends accumulate to the extent they are not paid on the dividend payment date following the calendar quarter for which they accrue. Accumulated preferential dividends will not bear interest. Dividends will not be paid on any class of General Motors Common Stock or other stock ranking junior to the shares of Series G 9.12% Preference Stock (other than a dividend payable in shares of any class of General Motors Common Stock) and General Motors will not redeem, repurchase or otherwise acquire any shares of General Motors Common Stock or other stock ranking junior to the shares of Series G 9.12% Preference Stock (other than a redemption or purchase of shares of General Motors Common Stock made in connection with employee incentive or benefit plans of General Motors or its subsidiaries), unless the full preferential dividends accumulated on all outstanding shares of Series G 9.12% Preference Stock have been paid. Dividends will not be declared on any series of General Motors Preference Stock for any prior dividend payment period unless there shall have been declared on all outstanding shares of General Motors Preference Stock ranking on a parity with such series, in respect of all dividend payment periods of such parity stock terminating with or before such prior dividend payment period, like proportionate dividends determined ratably in proportion to the respective preferential dividends accumulated to date on such series and the dividends accumulated on all such outstanding parity General Motors Preference Stock. Conversion. The shares of Series G 9.12% Preference Stock are not convertible into shares of any other class of capital stock of General Motors. Redemption. The shares of Series G 9.12% Preference Stock may not be redeemed prior to January 1, 2001. On or after January 1, 2001, General Motors may, at its option, on not less than 35 nor more than 60 days notice, redeem the shares of Series G 9.12% Preference Stock, as a whole or in part, at any time or from 83 93 time to time, for cash in an amount equal to $100 per share of Series G 9.12% Preference Stock, plus an amount equal to all dividends accrued and unpaid thereon to the date fixed for redemption. If less than all outstanding shares of Series G 9.12% Preference Stock are to be redeemed, shares to be redeemed will be selected by General Motors by lot or pro rata or by any other method determined by General Motors in its sole discretion to be equitable. Holders of shares of Series G 9.12% Preference Stock have no right to require redemption of such shares. Liquidation Preference. In the event of the liquidation, dissolution or winding up of the business of General Motors, whether voluntary or involuntary, the holders of shares of Series G 9.12% Preference Stock will be entitled to the liquidation preference described below, after the holders of General Motors Preferred Stock (if any), receive the full preferential amounts to which they are entitled and before any distribution to holders of General Motors Common Stock. The holders of the shares of Series G 9.12% Preference Stock will be entitled to receive for each share $100 plus an amount equal to all dividends accrued and unpaid thereon to the date of final distribution to such holders (subject to the right of the holders of record of any Series G 9.12% Preference Share on a record date for payment of dividends thereon to receive a dividend payable on the date of final distribution), but such holders shall not be entitled to any further payment. If there are insufficient assets to permit full payment to holders of the shares of Series G 9.12% Preference Stock and the holders of any other series of General Motors Preference Stock which is on parity with the shares of Series G 9.12% Preference Stock as to liquidation rights, then the holders of the shares of Series G 9.12% Preference Stock and such other shares shall be paid ratably in proportion to the full distributable amounts to which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up. Voting. The shares of Series G 9.12% Preference Stock do not entitle holders thereof to voting rights, except (i) with respect to any amendment or alteration of any provision of the General Motors Certificate of Incorporation which would adversely affect the powers, preferences or special rights of the shares of Series G 9.12% Preference Stock, which requires the prior approval of the holders of at least two-thirds of the outstanding shares of Series G 9.12% Preference Stock, and (ii) in the event General Motors fails to pay accumulated preferential dividends on the shares of Series G 9.12% Preference Stock in full for any six quarterly dividend payment periods, whether or not consecutive, and all such dividends remain unpaid (a "Preferential Dividend Default"), or as required by law. In the event of a Preferential Dividend Default, the number of directors of General Motors will be increased by two and the holders of the outstanding shares of Series G 9.12% Preference Stock, voting together as a class with all other series of General Motors Preference Stock ranking junior to or on a parity with the shares of Series G 9.12% Preference Stock and then entitled to vote on the election of such directors, will be entitled to elect such two additional directors until the full dividends accumulated on all outstanding shares of Series G 9.12% Preference Stock have been paid. Transfer Agent, Registrar, Dividend Disbursing Agent and Redemption Agent The transfer agent, registrar, dividend agent and redemption agent for all shares of General Motors Preference Stock is The First National Bank of Boston (the "Transfer Agent"). The First National Bank of Boston acts as the Depositary (the "Depositary") for the Depositary Shares. DEPOSITARY SHARES The Series D 9.12% Depositary Shares are issued under a Deposit Agreement, as amended (the "Series D Deposit Agreement"), between General Motors, Boston EquiServe, as the Series D Depositary, and the holders from time to time of the related depositary receipts evidencing the Series D 7.92% Depositary Shares (the "Series D Deposit Receipts"). The Series G 9.12% Depositary Shares are issued under a Deposit Agreement, as amended (the "Series G Deposit Agreement"), between General Motors, The First National Bank of Boston, as the Series G Depositary, and the holders from time to time of the related depositary receipts evidencing the Series G 9.12% Depositary Shares (the Series G Deposit Receipts"). The Series D Deposit Agreement and the Series G Deposit Agreement are each a "Deposit Agreement" and together constitute the "Deposit Agreements." 84 94 General Each Series D 7.92% Depositary Share represents one-fourth of a share of the Series D 7.92% Preference Stock (the equivalent of $25 liquidation preference of Series D 7.92% Preference Stock). Each Series G 9.12% Depository Share represents one-fourth of a share of the Series G 9.12% Preference Stock (the equivalent of $25 liquidation preference of Series G 9.12% Preference Stock. Subject to the terms of the applicable Deposit Agreement, each owner of a Depositary Share is entitled, in proportion to the one-fourth of a share of the Preference Stock represented by such Depositary Share, to all the rights and preferences of the shares of the Preference Stock represented thereby (including dividend, voting, redemption and liquidation rights). The Series D 7.92% Depositary Shares are listed on the NYSE under the symbol "GM Pr D" and the Series G 9.12% Depository Shares are listed and traded on the NYSE under the symbol "GM Pr G". Dividends and Other Distributions Each Depositary distributes all cash dividends or other cash distributions received in respect of applicable shares of such Preference Stock to the record holders of Depositary Shares relating to the Preference Stock in proportion to the number of such Depositary Shares owned by such holders. In the event of a distribution other than in cash, each Depositary will distribute property received by it to the record holders of the applicable Depositary Shares in an equitable manner in proportion to the number of such Depositary Shares owned by such holders, unless such Depositary determines that it is not feasible to make such distribution, in which case such Depositary may sell such property and distribute the net proceeds from such sale to such holders. Redemptions of Depositary Shares If the shares of either series of the Preference Stock are redeemed, the related Depositary Shares will be redeemed from the proceeds received by the applicable Depositary resulting from the redemption, in whole or in part, of such shares of the applicable Preference Stock held by such Depositary. With respect to both series of the Depository Shares, the redemption price per Depositary Share will be equal to one-fourth of the redemption price per share payable with respect to the applicable Preference Stock. Whenever General Motors redeems shares of any Preference Stock held by the applicable Depositary, such Depositary will redeem as of the same redemption date the number of Depositary Shares representing shares of the Preference Stock so redeemed. If fewer than all of the Depositary Shares of either series are to be redeemed, the Depositary Shares to be redeemed will be selected by lot, pro rata or by any other equitable method as may be determined by the applicable Depositary. Voting the Shares of the Preference Stocks Upon receipt of notice of any meeting at which the holders of a series of the Preference Stocks are entitled to vote, the Depositary for the related Depository Shares will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such shares of the related Preference Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the shares of the related Preference Stock) is entitled to instruct such Depositary as to the exercise of the voting rights pertaining to the fraction of the shares of the Preference Stock represented by such holder's Depositary Shares. Such Depositary will endeavor, insofar as practicable, to vote the number of shares of the Preference Stock represented by such Depositary Shares in accordance with such instructions, and General Motors will agree to take all reasonable action that may be deemed necessary by the such Depositary in order to enable the such Depositary to do so. Such Depositary will abstain from voting such shares of the Preference Stock to the extent it does not receive specific instructions from the holder of Depositary Shares representing such shares of the Preference Stock. 85 95 Amendment and Termination of the Deposit Agreements The forms of Depositary Receipts evidencing each series of the Depositary Shares and any provision of the applicable Deposit Agreement may at any time be amended by agreement between General Motors and the applicable Depositary. However, any amendment that materially and adversely alters the rights of the holders of Depositary Shares will not be effective unless the holders of at least a majority of the applicable series of Depositary Shares then outstanding approve such amendment. Each Deposit Agreement will only terminate if (i) all outstanding Depositary Shares of the applicable series have been redeemed or (ii) there has been a final distribution in respect of the shares of the Preference Stock represented by such Depositary Shares in connection with any liquidation, dissolution or winding up of General Motors and such distribution has been distributed to the holders of such Depositary Shares. Charges of Depositaries General Motors is required to pay all transfer and other taxes and governmental charges arising solely from the existence of each of the depositary arrangements. General Motors paid charges of each Depositary in connection with the initial deposit of the applicable shares of the Preference Stock and the issuance of the related Depositary Shares, and is required to pay charges of each Depositary in connection with all withdrawals of shares of the applicable Preference Stock by owners of the related Depositary Shares and any redemption of the shares of such Preference Stock. Holders of Depositary Shares are required to pay other transfer and other taxes and governmental charges and such other charges as are expressly provided in the applicable Deposit Agreement to be for their accounts. Resignation and Removal of Depositaries Each Depositary may resign at any time by delivering to General Motors notice of its election to do so. General Motors may at any time remove the Depositary. Any such resignation or removal shall take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Each successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. Miscellaneous Each Depositary is required to forward all reports and communications from General Motors that are delivered to such Depositary and that General Motors is required or otherwise determines to furnish to the holders of the shares of the applicable series of Preference Stock. Neither Depositary nor General Motors is liable under the applicable Deposit Agreement to holders of Depositary Receipts issued by the applicable Depositary other than for negligence, bad faith or willful misconduct. Neither Depositary nor General Motors is obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or Preference Stock unless satisfactory indemnity is furnished. General Motors and each Depositary may rely upon written advice of counsel or accountants, or upon information provided by persons presenting shares of the applicable Series of Preference Stock for deposit, holders of the applicable Depositary Receipts or other persons believed to be competent and on documents believed to be genuine. 86 96 RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE JUNIOR SUBORDINATED DEBENTURES AND THE PREFERRED SECURITIES GUARANTEES As set forth in the applicable Declaration, each Trust exists for the purpose of (i) issuing (a) its Preferred Securities in exchange for Depositary Shares validly tendered in its Offer and delivering such Depositary Shares to General Motors in consideration of the deposit by General Motors as trust assets of the applicable series of Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of such Trust's Preferred Securities, and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equivalent amount of the applicable series of the Junior Subordinated Debentures. As long as payments of interest and other payments are made when due on each series of the Junior Subordinated Debentures, such payments will be sufficient to cover distributions and payments due on the Trust Securities of each Trust because of the following factors: (i) the aggregate principal amount of Junior Subordinated Debentures held by each Trust will be equal to the sum of the aggregate stated liquidation amount of its Trust Securities; (ii) the interest rate and the interest and other payment dates on such Junior Subordinated Debentures will match the distribution rate and distribution and other payment dates for such Preferred Securities; (iii) General Motors shall pay all, and no Trust shall not obligated to pay, directly or indirectly, any costs, expenses, debts, and obligations of such Trust (other than with respect to its Trust Securities); and (iv) the applicable Declaration further provides that the Regular Trustees of such Trust shall not take or cause or permit such Trust to, among other things, engage in any activity that is not consistent with the purposes of such Trust. Payments of distributions (to the extent funds therefor are available) and other payments due on each series of the Preferred Securities (to the extent funds therefor are available) are guaranteed by General Motors as and to the extent set forth under "Description of the Preferred Securities Guarantees." If General Motors does not make interest payments on the Junior Subordinated Debentures purchased by each Trust, such Trust will not have sufficient funds to pay distributions on its Preferred Securities. Each Preferred Securities Guarantee does not apply to any payment of distributions unless and until the applicable Trust has sufficient funds for the payment of such distributions. Each Preferred Securities Guarantee covers the payment of distributions and other payments on applicable Preferred Securities only if and to the extent that General Motors has made a payment of interest or principal on the Junior Subordinated Debentures held by such Trust as its sole asset. Each Preferred Securities Guarantee, when taken together with General Motors' obligations under the applicable Junior Subordinated Debentures and the Indenture and its obligations under the Declaration, including its obligations to pay costs, expenses, debts and liabilities of such Trust (other than with respect to its Trust Securities), provide a full and unconditional guarantee of amounts on such Trust's Preferred Securities. If General Motors fails to make interest or other payments on Junior Subordinated Debentures when due (taking account of any Extension Period), the Declaration relating to each Trust provides a mechanism whereby the holders of the Preferred Securities of such Trust, using the procedures described in "Description of the Preferred Securities--Book-Entry; Delivery and Form" and "--Voting Rights," may direct the Institutional Trustee of such Trust to enforce its rights under such Junior Subordinated Debentures. If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures, a holder of the related Preferred Securities may institute a legal proceeding against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default with respect to a Trust has occurred and is continuing and such event is attributable to the failure of General Motors to pay interest or principal on the Junior Subordinated Debentures held by such Trust on the date such interest or principal is otherwise payable (or in the case of redemption on the redemption date), then a holder of the related Preferred Securities may institute a Direct Action for payment on or after the respective due date specified in such Junior Subordinated Debentures. In connection with such Direct Action, General Motors will be subrogated to the rights of such holder of Preferred Securities under applicable Declaration to the extent of any payment made by General Motors to such holder of Preferred Securities in such Direct Action. General Motors, under the applicable Preferred 87 97 Securities Guarantee, acknowledges that the Guarantee Trustee for such Preferred Securities Guarantee shall enforce such Preferred Securities Guarantee on behalf of the holders of the Preferred Securities to which such Preferred Securities Guarantee relates. If General Motors fails to make payments under any Preferred Securities Guarantee, any holder of Preferred Securities to which such Preferred Securities Guarantee relates may institute a Direct Action against General Motors to enforce the applicable Guarantee Trustee's rights and the obligations of General Motors under such Preferred Securities Guarantee without first instituting a legal proceeding against applicable Trust, such Guarantee Trustee, or any other person or entity. 88 98 UNITED STATES FEDERAL INCOME TAXATION The following is a general summary of the material United States federal income tax consequences of the issuance of Preferred Securities in exchange for the Depositary Shares pursuant to the Offers, and of the ownership and disposition of Preferred Securities. To the extent it relates to matters of law or legal conclusions, this summary constitutes the opinion of Robert N. Deitz, Esq. Tax Staff of General Motors, counsel to General Motors and each Trust ("Tax Counsel"). Unless otherwise stated, this summary deals only with Preferred Securities held as capital assets by a holder who receives such Preferred Securities pursuant to an Offer (an "Initial Holder") and who holds the Depositary Shares tendered in such Offer as capital assets. This summary does not discuss all the tax consequences that may be relevant to a particular Initial Holder in light of the Initial Holder's particular circumstances and it is not intended to be applicable in all respects to all categories of Initial Holders, some of whom (such as insurance companies, tax-exempt persons, financial institutions, regulated investment companies, dealers in securities or currencies, persons that hold Depositary Shares or Preferred Securities received in the exchange as a position in a "straddle," as part of a "synthetic security," "hedge," "conversion transaction" or other integrated investment or persons whose functional currency is other than United States dollars) may be subject to different rules not discussed below. In addition, this summary does not address any state, local or foreign tax considerations that may be relevant to a Initial Holder's decision to exchange Depositary Shares for Preferred Securities pursuant to the Offers. This summary is based on the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations thereunder and administrative and judicial interpretations thereof, as of the date hereof, all of which are subject to change (possibly on retroactive basis). However, such summary and the opinion rendered by Tax Counsel have no binding effect on the IRS or on the courts. ALL HOLDERS OF DEPOSITARY SHARES ARE ADVISED TO CONSULT THEIR TAX ADVISORS AS TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OF DEPOSITARY SHARES FOR PREFERRED SECURITIES PURSUANT TO AN OFFER AND OF THE OWNERSHIP AND DISPOSITION OF PREFERRED SECURITIES IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR OTHER TAX LAWS. EXCHANGE OF DEPOSITARY SHARES FOR PREFERRED SECURITIES IN THE OFFERS The exchange of Depositary Shares for Preferred Securities pursuant to an Offer will be a taxable transaction. Holders who participate in the exchange and who actually or constructively own solely Depositary Shares, or who actually or constructively own Depository Shares and a minimal percentage of any other class of General Motors capital stock, and who do not exercise any control over the affairs of General Motors, will recognize gain or loss in an amount equal to the difference between the fair market value of the Preferred Securities received, measured on the applicable Exchange Date, and the exchanging holder's tax basis in the Depositary Shares exchanged therefor. Such amount will be long-term capital gain or loss if such Depositary Shares have been held for more than one year as of such date. General Motors will provide information, prior to January 31, 1998, concerning such fair market value to the Exchange Agent, which will provide such information to holders of record who exchange Depositary Shares for Preferred Securities other than holders who demonstrate that they are not U.S. persons (as described under "--United States Alien Holders"), on a Form 1099-B reporting such information. It is anticipated that persons who hold such Depositary Shares as nominees for beneficial holders will provide such information to such beneficial holders. A holder's aggregate tax basis (and such holder's issue price) in his or her pro rata share of the underlying Junior Subordinated Debentures will be equal to the fair market value of the Preferred Securities received pursuant to an Offer on the applicable Exchange Date. Holders who actually or constructively own more than a minimal percentage of any other class of General Motors stock are advised to consult their tax advisors as to the income tax consequences of exchanging Depositary Shares in either or both of the Offers. 89 99 CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES In connection with the issuance of the Junior Subordinated Debentures, Tax Counsel will render its opinion generally to the effect that under then current law and assuming full compliance with the terms of the Indenture (and certain other documents), and based on certain facts and assumptions contained in such opinion, each series of the Junior Subordinated Debentures will be classified for United States federal income tax purposes as indebtedness of General Motors. CLASSIFICATION OF THE TRUSTS In connection with the issuance of the Preferred Securities, Tax Counsel will render its opinion generally to the effect that, under then current law and assuming full compliance with the terms of the Declaration relating to each Trust and the Indenture (and certain other documents), and based on certain facts and assumptions contained in such opinion, each Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation. Accordingly, for United States federal income tax purposes, each holder of Preferred Securities generally will be considered the owner of an undivided interest in the underlying Junior Subordinated Debentures, and each holder will be required to include in its gross income any interest (or OID accrued) with respect to its allocable share of those Junior Subordinated Debentures. INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT Under recently issued Treasury regulations (the "Regulations") applicable to debt instruments issued on or after August 13, 1996, a "remote" contingency that stated interest will not be timely paid will be ignored in determining whether a debt instrument is issued with OID. General Motors believes that the likelihood of its exercising its option to defer payments of interest on either series of Junior Subordinated Debentures is "remote" since exercising either such option would prevent General Motors from declaring dividends on any class of its equity securities. Accordingly, General Motors intends to take the position, based on the advice of Tax Counsel, that the Junior Subordinated Debentures will not be considered to be issued with OID and, accordingly, stated interest on the Junior Subordinated Debentures generally will be taxable to a holder as ordinary income at the time it is paid or accrued in accordance with such holder's method of accounting. Moreover, if the issue price of Preferred Securities received by a holder exceeds the liquidation amount of such Preferred Securities, such excess will be treated as "amortizable bond premium." A holder which receives Preferred Securities with amortizable bond premium may elect to deduct such amortizable bond premium and such deduction shall be applied against (and operate to reduce) the amount of interest taxable as ordinary income on the Preferred Securities. A holder receiving Preferred Securities with amortizable bond premium should consult its tax advisor with respect to the manner of making such election. Under the Regulations, if General Motors were to exercise its option to defer payments of interest with respect to any series of Junior Subordinated Debentures, such Junior Subordinated Debentures would at that time be treated as issued with OID, and all stated interest on such Junior Subordinated Debentures would thereafter be treated as OID as long as such Junior Subordinated Debentures remain outstanding. In such event, all of a holder's taxable interest income with respect to such Junior Subordinated Debentures would thereafter be accounted for on an economic accrual basis regardless of such holder's method of tax accounting, and actual distributions of stated interest would not be reported as taxable income. Consequently, a holder of Preferred Securities would be required to include in gross income OID even though General Motors would not make actual cash payments during any applicable Extension Period. The Regulations have not yet been addressed in any rulings or other interpretations by the Internal Revenue Service (the "IRS"), and it is possible that the IRS could take a position contrary to Tax Counsel's interpretation herein. Because distributions on the Preferred Securities will constitute interest or OID, corporate holders of the Preferred Securities will not be entitled to a dividends-received deduction with respect to any income recognized with respect to such Preferred Securities. 90 100 RECEIPT OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF THE TRUSTS General Motors will have the right at any time to liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of its Trust Securities. General Motors has no present intention to take such action with respect to either Trust. Under current law, such a distribution, for United States federal income tax purposes, would be treated as a nontaxable event to each holder, and each holder would receive an aggregate tax basis in such Junior Subordinated Debentures equal to such holder's aggregate tax basis in its Preferred Securities. A holder's holding period in the Junior Subordinated Debentures so received in liquidation of the Trust would include the period during which such Preferred Securities were held by such holder. Under certain circumstances described herein (see "Description of the Preferred Securities"), the Junior Subordinated Debentures may be redeemed for cash and the proceeds of such redemption distributed to holders in redemption of their related Preferred Securities. Under current law, such a redemption would, for United States federal income tax purposes, constitute a taxable disposition of the redeemed Preferred Securities, and such holder could recognize gain or loss as if it sold such redeemed Preferred Securities for cash. See "--Sales of Preferred Securities." SALES OF PREFERRED SECURITIES A holder that sells Preferred Securities (including pursuant to any redemption of such Preferred Securities by General Motors) will recognize gain or loss equal to the difference between its adjusted tax basis in such Preferred Securities and the amount realized on the sale of such Preferred Securities (other than with respect to accrued and unpaid interest which has not yet been included in income, which will be treated as ordinary income). A holder's adjusted tax basis in its Preferred Securities generally will, if such Preferred Securities are received in exchange for Depositary Shares pursuant to an Offer, be equal to the fair market value of such securities on the applicable Exchange Date, increased by OID (if any) previously includable in such holder's gross income to the date of disposition and decreased by (i) payments of OID (if any) received on such Preferred Securities and (ii) amounts deducted by the holder as amortizable bond premium. Such gain or loss generally will be a capital gain or loss and generally will be a long-term capital gain or loss if the Preferred Securities have been held for more than one year, which holding period will not include the period such holder held the Depositary Shares. The Preferred Securities may trade at a price that does not accurately reflect the value of accrued but unpaid interest with respect to the underlying Junior Subordinated Debentures. A holder who uses the accrual method of accounting for tax purposes (and a cash method holder, if the applicable Junior Subordinated Debentures are deemed to have been issued with OID) and who disposes of his Preferred Securities between record dates for payments of distributions thereon will be required to include accrued but unpaid interest on such Junior Subordinated Debentures through the date of disposition in income as ordinary income (i.e., interest or, possibly, OID), and to add such amount to his adjusted tax basis in his pro rata share of such underlying Junior Subordinated Debentures deemed disposed of. To the extent the selling price is less than the holder's adjusted tax basis (which will include all accrued but unpaid interest) a holder will recognize a capital loss. Capital losses generally may be used by a corporate taxpayer only to offset capital gains and may be used by an individual taxpayer only to offset capital gains plus $3,000 of other income. UNITED STATES ALIEN HOLDERS For purposes of this discussion, a "United States Alien Holder" is any corporation, individual, partnership, estate or trust that is, as to the United States, a foreign corporation, a non-resident alien individual, a foreign partnership, or a non-resident fiduciary of a foreign estate or trust. Under present United States federal income tax law: (i) payments by a Trust or any of its paying agents to any holder of a Preferred Security who or which is a United States Alien Holder will not be subject to United States federal withholding tax; provided that, (a) the beneficial owner of such Preferred Security does not actually or constructively own 10 percent or more of the total combined voting power of all classes of stock of General Motors entitled to vote, (b) the beneficial owner of such Preferred Security is not a controlled 91 101 foreign corporation that is related to General Motors through stock ownership, and (c) either (A) the beneficial owner of such Preferred Security certifies to the applicable Trust or its agent, under penalties of perjury, that it is not a United States holder and provides its name and address or (B) a securities clearing organization, bank or other financial institution that holds customers' securities in the ordinary course of its trade or business (a "Financial Institution"), and holds such Preferred Security in such capacity, certifies to the applicable Trust or its agent, under penalties of perjury, that such statement has been received from the beneficial owner by it or by a Financial Institution between it and the beneficial owner and furnishes such Trust or its agent with a copy thereof; and (ii) a United States Alien Holder of a Preferred Security will not be subject to United States federal withholding tax on any gain realized upon the sale or other disposition of a Preferred Security. PROPOSED TAX LEGISLATION On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget Proposal, the United States Treasury Department proposed legislation that would, among other things, deny an issuer a deduction for United States federal income tax purposes for the payment of interest on instruments with characteristics similar to the Junior Subordinated Debentures. If the proposed legislation were enacted in its current form, it is not expected to apply to the Junior Subordinated Debentures since the proposed effective date for this provision is the date of first committee action. There can be no assurances, however, that the proposed legislation, if enacted, or similar legislation enacted after the date hereof would not adversely affect the tax treatment of the Junior Subordinated Debentures, resulting in a Tax Event in respect of either or both Trusts, which would permit General Motors to cause a redemption of the Preferred Securities at the applicable Tax Event Redemption Price by electing to prepay the Junior Subordinated Debentures at the applicable Tax Event Prepayment Price. See "Description of the Preferred Securities--Tax Event Redemption." INFORMATION REPORTING TO HOLDERS Generally, income on the Preferred Securities will be reported to holders on Forms 1099, which forms should be mailed to holders of Preferred Securities by January 31 following each calendar year. BACKUP WITHHOLDING Payments made on, and proceeds from the sale of, the Preferred Securities may be subject to a "backup" withholding tax of 31 percent unless the holder complies with certain identification requirements. Any withheld amounts will be allowed as a credit against the holder's United States federal income tax, provided the required information is provided to the IRS. THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR OTHER TAX LAWS. 92 102 LEGAL MATTERS Certain matters of Delaware law relating to the validity of each series of the Preferred Securities will be passed upon on behalf of the applicable Trust by Richards, Layton & Finger, Wilmington, Delaware, special Delaware counsel to each Trust. The validity of the Junior Subordinated Debentures held by each Trust and the Preferred Securities Guarantees and certain matters relating thereto will be passed upon for General Motors and the applicable Trust by Martin I. Darvick, Esq., Legal Staff to General Motors Corporation. Certain United States federal income taxation matters will be passed upon for General Motors and such Trust by Robert N. Deitz, Esq., Tax Staff to General Motors Corporation. Certain legal matters will be passed upon for the Dealer Manager by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York. Mr. Darvick is the beneficial owner of shares, including shares subject to options, of General Motors Common Stock. Mr. Deitz is the beneficial owner of shares of General Motors Common Stock. EXPERTS The consolidated financial statements and financial statement schedule of General Motors appearing in General Motors' Annual Report on Form 10-K for the fiscal year ended December 31, 1996, incorporated by reference herein have been incorporated by reference herein in reliance upon the reports of Deloitte & Touche LLP, independent auditors given upon the authority of said firm as experts in accounting and auditing. 93 103 Facsimile copies of the Letters of Transmittal will be accepted. Letters of Transmittal, certificates representing Depositary Shares and any other required documents should be sent by each Holder of Depositary Shares or his or her broker, dealer, commercial bank, trust company or other nominee to the Exchange Agent at one of the addresses as set forth below: THE EXCHANGE AGENT IS: THE FIRST NATIONAL BANK OF BOSTON If delivered by Hand, to: If delivered by Mail, to: If delivered by Overnight Courier, to: Securities Transfer & The First National Bank of Boston The First National Bank of Boston Reporting Services Shareholder Services Division Shareholder Services Division 55 Broadway, Third Floor P.O. Box 9360 Mail Stop 45-02-53 New York, New York 10006 Mail Stop 45-02-53 150 Royall Street Boston, Massachusetts 02205-9360 Canton, Massachusetts 02021
THE INFORMATION AGENT IS: (LOGO) Wall Street Plaza New York, New York 10005 Banks and Brokers Call Collect: (212) 440-9800 All Others Call Toll-Free: (800) 223-2064 Any questions or requests for assistance or additional copies of this Prospectus or the Letters of Transmittal or for copies of the Notices of Guaranteed Delivery may be directed to the Information Agent at its telephone number and location set forth above. You may also contact your broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offers. THE DEALER MANAGER FOR THE OFFERS IS: MERRILL LYNCH & CO. World Financial Center North Tower Seventh Floor New York, New York 10281 (888) ML4-TNDR (Toll-Free) (888) 654-8637 (Toll-Free) Attn: Susan L. Weinberg 104 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits A list of exhibits included as part of this Registration Statement is set forth in an Exhibit Index which immediately precedes such exhibits. (b) The following financial statement schedule is incorporated by reference to this part of this Registration Statement: FINANCIAL STATEMENT SCHEDULE II -- ALLOWANCES All other schedules are omitted because they are not applicable, or not required. 105 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Warren, State of Michigan, on April 15, 1997. GENERAL MOTORS CORPORATION By: /s/ JOHN F. SMITH JR. ------------------------------------ John F. Smith, Jr., Chairman of the Board of Directors, Chief Executive Officer and President Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on April 15, 1997 in the capacities indicated.
SIGNATURE TITLE --------- ----- /s/ JOHN F. SMITH, JR. Chairman of the Board of - ----------------------------------------------------- Directors, Chief Executive (John F. Smith, Jr.) Officer and President /s/ HARRY J. PEARCE Vice Chairman of the Board of - ----------------------------------------------------- Directors (Harry J. Pearce) /s/ J. MICHAEL LOSH Executive Vice President and Principal - ----------------------------------------------------- Chief Financial Officer Financial (J. Michael Losh) Officers /s/ LEON J. KRAIN Vice President and Group Principal - ----------------------------------------------------- Executive Financial (Leon J. Krain) Officers /s/ JOHN D. FINNEGAN Vice President and Treasurer Principal - ----------------------------------------------------- Financial (John D. Finnegan) Officers /s/ WALLACE W. CREEK Comptroller Principal - ----------------------------------------------------- Accounting (Wallace W. Creek) Officers /s/ PETER R. BIBLE Chief Accounting Officer Principal - ----------------------------------------------------- Accounting (Peter R. Bible) Officers /s/ ANNE L. ARMSTRONG Director - ----------------------------------------------------- (Anne L. Armstrong) /s/ PERCY BARNEVIK Director - ----------------------------------------------------- (Percy Barnevik) /s/ JOHN H. BRYAN Director - ----------------------------------------------------- (John H. Bryan) /s/ THOMAS E. EVERHART Director - ----------------------------------------------------- (Thomas E. Everhart)
106
SIGNATURE TITLE --------- ----- /s/ CHARLES T. FISHER, III Director - ----------------------------------------------------- (Charles T. Fisher, III) /s/ GEORGE M.C. FISHER Director - ----------------------------------------------------- (George M.C. Fisher) /s/ J. WILLARD MARRIOTT, JR. Director - ----------------------------------------------------- (J. Willard Marriott, Jr.) /s/ ANN D. MCLAUGHLIN Director - ----------------------------------------------------- (Ann D. McLaughlin) /s/ ECKHARD PFEIFFER Director - ----------------------------------------------------- (Eckhard Pfeiffer) /s/ EDMUND T. PRATT, JR. Director - ----------------------------------------------------- (Edmund T. Pratt, Jr.) /s/ JOHN G. SMALE Director - ----------------------------------------------------- (John G. Smale) /s/ LOUIS W. SULLIVAN Director - ----------------------------------------------------- (Louis W. Sullivan) /s/ DENNIS WEATHERSTONE Director - ----------------------------------------------------- (Dennis Weatherstone) /s/ THOMAS H. WYMAN Director - ----------------------------------------------------- (Thomas H. Wyman)
107 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Form S-4 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on April 15, 1997. GENERAL MOTORS CAPITAL TRUST D By: /s/ JOHN D. FINNEGAN ------------------------------------ John D. Finnegan, Trustee GENERAL MOTORS CAPITAL TRUST G By: /s/ JOHN D. FINNEGAN ------------------------------------ John D. Finnegan, Trustee 108 INDEX OF EXHIBITS 1(a) Form of Dealer Manager Agreement.(1) 4(a)(i) Certificate of Trust of General Motors Capital Trust D. 4(a)(ii) Certificate of Trust of General Motors Capital Trust G. 4(b)(i) Declaration of Trust of General Motors Capital Trust D. 4(b)(ii) Declaration of Trust of General Motors Capital Trust G. 4(c)(i) Form of Amended and Restated Declaration of Trust to be used in connection with the issuance of the Series D Preferred Securities.(1) 4(c)(ii) Form of Amended and Restated Declaration of Trust to be used in connection with the issuance of the Series G Preferred Securities.(1) 4(d) Form of Indenture between General Motors and Wilmington Trust Company, as Trustee, as supplemented by the Series D Supplement and the Series G Supplement.(1) 4(e)(i) Form of Series D Preferred Security (included in Exhibit 4(c)(i)). 4(e)(ii) Form of Series G Preferred Security (included in Exhibit 4(c)(ii)). 4(f)(i) Form of Series D Junior Subordinated Debenture (included in Exhibit 4(e)(i)). 4(f)(ii) Form of Series G Junior Subordinated Debenture (included in Exhibit 4(e)(ii)). 4(g)(i) Form of Preferred Securities Guarantee relating to Series D Preferred Securities.(1) 4(g)(ii) Form of Preferred Securities Guarantee relating to Series G Preferred Securities.(1) 5(a) Opinion of Richards, Layton & Finger.(1) 5(b) Opinion of Martin I. Darvick, Esq., Legal Staff of General Motors Corporation.(1) 8 Tax Opinion of Robert N. Deitz, Tax Staff of General Motors Corporation.(1) 11 Computation of Earnings Per Share.(1) 12 Computation of Ratio of Earnings to Fixed Charges and Dividends on Preferred Stock.(1) 23(a) Consent of Deloitte & Touche LLP. 23(b) Consent of Richards, Layton & Finger (included in Exhibit 5(a)). 23(c) Consent of Martin I. Darvick, Esq. (included in Exhibit 5(b)). 23(d) Consent of Robert N. Deitz, Esq. (included in Exhibit 8). 24(a) Powers of Attorney for General Motors (included on signature page). 24(b)(i) Powers of Attorney for General Motors Capital Trust D (included in Exhibit 4(b)(i)). 24(b)(ii) Powers of Attorney for General Motors Capital Trust G (included in Exhibit 4(b)(ii)). 25(a) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Debt Trustee under the Indenture (Series D). 25(b) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Preferred Security Trustee under the Preferred Securities Guarantee (Series D). 25(c) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Trustee under the Declaration of Trust (Series D). 25(d) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Debt Trustee under the Indenture (Series G). 25(e) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Preferred Security Trustee under the Preferred Securities Guarantee (Series G). 25(f) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Trustee under the Declaration of Trust (Series G). 99(a)(i) Form of Series D Letter of Transmittal.(1)
109 99(a)(ii) Form of Series G Letter of Transmittal.(1) 99(b)(i) Form of Series D Notice of Guaranteed Delivery.(1) 99(b)(ii) Form of Series G Notice of Guaranteed Delivery.(1) 99(c)(i) Form of Series D Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.(1) 99(c)(ii) Form of Series G Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.(1) 99(d)(i) Form of Series D Letter to Clients.(1) 99(d)(ii) Form of Series G Letter to Clients.(1) 99(e) Form of Exchange Agent Agreement.(1) 99(f) Form of Information Agent Agreement.(1) 99(g)(i) Form of General Motors Letter to Holders of Series D 7.92% Depositary Shares.(1) 99(g)(ii) Form of General Motors Letter to Holders of Series G 9.12% Depositary Shares.(1) 99(h) Form of Questions and Answers Regarding Preferred Securities.(1) 99(i)(i) Form of Series D Notice of Offers to Exchange.(1) 99(i)(ii) Form of Series G Notice of Offers to Exchange.(1) - ------------------------- (1) To be filed by amendment. EX-4.(A)(I) 2 EX-4(A)(I) 1 EXHIBIT 4(a)(i) CERTIFICATE OF TRUST OF GENERAL MOTORS CAPITAL TRUST D This Certificate of Trust of General Motors Capital Trust D (the "Trust") dated April 11, 1997, is hereby duly executed and filed by Wilmington Trust Company, a Delaware banking corporation, John D. Finnegan, Walter G. Borst and Martin I. Darvick, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et. seq.) 1. Name. The name of the business trust formed hereby is General Motors Capital Trust D. 2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware, is Wilmington Trust Company, 1100 N. Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration. 3. This Certificate of Trust shall be effective on April 11, 1997. IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have executed this Certificate of Trust as of the date first-above written. WILMINGTON TRUST COMPANY, as Trustee /s/ Emmett R. Harmon ---------------------------------- Name: Emmett R. Harmon Title: Vice President /s/ John D. Finnegan ---------------------------------- JOHN D. FINNEGAN, as Trustee /s/ Walter G. Borst ---------------------------------- WALTER G. BORST, as Trustee /s/ Martin I. Darvick ---------------------------------- MARTIN I. DARVICK, as Trustee EX-4.(A)(II) 3 EX-4(A)(II) 1 EXHIBIT 4(a)(ii) CERTIFICATE OF TRUST OF GENERAL MOTORS CAPITAL TRUST G This Certificate of Trust of General Motors Capital Trust G (the "Trust") dated April 11, 1997, is hereby duly executed and filed by Wilmington Trust Company, a Delaware banking corporation, John D. Finnegan, Walter G. Borst and Martin I. Darvick, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et. seq.) 1. Name. The name of the business trust formed hereby is General Motors Capital Trust G. 2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware, is Wilmington Trust Company, 1100 N. Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration. 3. This Certificate of Trust shall be effective on April 11, 1997. IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have executed this Certificate of Trust as of the date first-above written. WILMINGTON TRUST COMPANY, as Trustee /s/ Emmett R. Harmon --------------------------------- Name: Emmett R. Harmon Title: Vice President /s/ John D. Finnegan --------------------------------- JOHN D. FINNEGAN, as Trustee /s/ Walter G. Borst --------------------------------- WALTER G. BORST, as Trustee /s/ Martin I. Darvick --------------------------------- MARTIN I. DARVICK, as Trustee EX-4.(B)(I) 4 EX-4(B)(I) 1 EXHIBIT 4(b)(i) DECLARATION OF TRUST OF GENERAL MOTORS CAPITAL TRUST D Dated as of April 11, 1997 2 TABLE OF CONTENTS
Page ARTICLE I DEFINITIONS SECTION 1.1 Definitions 1 ARTICLE II ORGANIZATION SECTION 2.1 Name 4 SECTION 2.2 Office 4 SECTION 2.3 Purpose 4 SECTION 2.4 Authority 4 SECTION 2.5 Title to Property of the Trust 4 SECTION 2.6 Powers of the Trustees 5 SECTION 2.7 Filing of Certificate of Trust 6 SECTION 2.8 Duration of Trust. 6 SECTION 2.9 Responsibilities of the Sponsor 6 SECTION 2.10 Declaration Binding on Securities Holders 7 ARTICLE III TRUSTEES SECTION 3.1 Trustees 7 SECTION 3.2 Regular Trustees 7 SECTION 3.3 Delaware Trustee 8 SECTION 3.4 Institutional Trustee. 9 SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration 9 ARTICLE IV LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 4.1 Exculpation 9 SECTION 4.2 Fiduciary Duty 9 SECTION 4.3 Indemnification 11 SECTION 4.4 Outside Businesses 15 ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS SECTION 5.1 Amendments 15 SECTION 5.2 Termination of Trust 15 SECTION 5.3 Governing Law 16 SECTION 5.4 Headings 16 SECTION 5.5 Successors and Assigns 16 SECTION 5.6 Partial Enforceability 16 SECTION 5.7 Counterparts 16
3 DECLARATION OF TRUST OF CAPITAL TRUST D April 11, 1997 DECLARATION OF TRUST ("Declaration") dated and effective as of April 11, 1997 by the Trustees (as defined herein), the Sponsor (as defined herein), and by the holders, from time to time, of undivided beneficial interests in the Trust to be issued pursuant to this Declaration; WHEREAS, the Trustees and the Sponsor desire to establish a trust (the "Trust") pursuant to the Delaware Business Trust Act for the purpose of issuing and offering the Preferred Securities in an Exchange (as defined herein) and investing the Parent Shares received in certain Debentures; and NOW, THEREFORE, it being the intention of the parties hereto that the Trust constitute a business trust under the Business Trust Act and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the exclusive benefit of the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Declaration. ARTICLE I DEFINITIONS SECTION 1.1 Definitions. Unless the context otherwise requires: (a) capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; (b) a term defined anywhere in this Declaration has the same meaning throughout; (c) all references to "the Declaration" or "this Declaration" are to this Declaration of Trust as modified, supplemented or amended from time to time; (d) all references in this Declaration to Articles and Sections are to Articles and Sections of this Declaration unless otherwise specified; and (e) a reference to the singular includes the plural and vice versa. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder. "Business Day" means any day other than a day on which banking institutions in New York, New York are authorized or required by law to close. "Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq., as it may be amended from time to time, or any successor legislation. 4 "Commission" means the Securities and Exchange Commission. "Common Securities" means securities representing an undivided beneficial interests in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Covered Person" means (a) any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Trust or (ii) the Trust's Affiliates and (b) any holder of Securities. "Debenture Issuer" means the Parent in its capacity as the issuer of the Debentures under the Indenture. "Debentures" means the series of Debentures to be issued by the Debenture Issuer and acquired by the Trust. "Debenture Trustee" means Wilmington Trust Company, as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee. "Delaware Trustee" has the meaning set forth in Section 3.1. "Exchange" means the exchange of Parent Shares for Preferred Securities, which exchange may include a cash or cash tender offer component. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time or any successor legislation. "Fiduciary Indemnified Person" has the meaning set forth in Section 4.3(b). "Indemnified Person" means a Parent Indemnified Person or a Fiduciary Indemnified Person. "Indenture" means the indenture to be entered into between the Parent and the Debenture Trustee and any indenture supplemental thereto pursuant to which the Debentures are to be issued. "Institutional Trustee" has the meaning set forth in Section 3.4. "Parent" means General Motors Corporation , or any successor entity in a merger. "Parent Indemnified Person" means (a) any Regular Trustee; (b) any Affiliate of any Regular Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates. "Parent Shares" means depositary shares, each representing one-fourth of a share of Series D 7.92% Preference Stock, $0.10 par value per share, of the Parent which are exchanged for Preferred Securities in the Exchange. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Preferred Securities" means securities representing an undivided beneficial interests in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Regular Trustee" means any Trustee other than the Delaware Trustee and the Institutional Trustee. "Securities" means the Common Securities and the Preferred Securities. 2 5 "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation. "Sponsor" means the Parent in its capacity as sponsor of the Trust. "Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. ARTICLE II ORGANIZATION SECTION 2.1 Name. The Trust created by this Declaration is named "General Motors Capital Trust D." The activities of the Trust may be conducted under the name of the Trust or any other name deemed advisable by the Regular Trustees. SECTION 2.2 Office. The address of the principal office of the Trust is c/o General Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301. At any time, the Regular Trustees may designate another principal office. SECTION 2.3 Purpose. The exclusive purposes and functions of the Trust are (i) to issue the Preferred Securities in exchange for validly tendered Parent Shares and deliver such Parent Shares to the Debenture Issuer in consideration for its deposit in the Trust of Debentures and (ii) to issue the Common Securities to the Parent in exchange for cash and to invest the proceeds thereof in Debentures and in each case to engage in only those other activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to be classified for United States federal income tax purposes as a grantor trust. SECTION 2.4 Authority. Subject to the limitations provided in this Declaration, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no person shall be required to inquire into the authority of the Regular Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Regular Trustees as set forth in this Declaration. SECTION 2.5 Title to Property of the Trust. Legal title to all assets of the Trust shall be vested in the Trust. SECTION 2.6 Powers of the Trustees. The Regular Trustees shall have the exclusive power and authority to cause the Trust to engage in the following activities: 3 6 (a) to issue the Preferred Securities and the Common Securities in accordance with this Declaration, in connection with the exchange of the Preferred Securities; provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further, that there shall be no interests in the Trust other than the Securities and the issuance of the Securities shall be limited to the one-time simultaneous issuance of both Preferred Securities and Common Securities; (b) in connection with the issue and exchange of the Preferred Securities, at the direction of the Sponsor, to: (i) execute and file with the Commission one or more registration statements on Form S-3 or Form S-4 prepared by the Sponsor, including any amendments thereto in relation to the Preferred Securities; (ii) execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary in order to qualify or register all or part of the Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale or exchange; (iii) execute and file an application, prepared by the Sponsor, to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing or quotation upon notice of issuance of any Preferred Securities; (iv) execute and file with the Commission a registration statement on Form 8-A, including any amendments thereto, prepared by the Sponsor relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act; (v) prepare, execute and file with the Commission an Issuer Tender Offer Statement on Schedule 13E-3 or Schedule 13E-4, as necessary, or any other appropriate document or schedule, and any amendments thereto; (vi) execute and enter into an underwriting agreement and pricing agreement providing for the sale of the Preferred Securities; and (vii) execute and enter into one or more dealer manager agreements, depositary agreements, exchange agent agreements, information agent agreements or other agreements as may be required in connection with the Exchange or the tender offer component of such Exchange; (c) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors and consultants and provide for reasonable compensation for such services; (d) to incur expenses which are necessary or incidental to carry out any of the purposes of this Declaration; and (e) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing. SECTION 2.7 Filing of Certificate of Trust. On or after the date of execution of this Declaration, the Trustees shall cause the filing of the Certificate of Trust for the Trust in the form attached hereto as Exhibit A with the Secretary of State of the State of Delaware. 4 7 SECTION 2.8 Duration of Trust. The Trust, absent termination pursuant to the provisions of Section 5.2, shall have existence for twenty five (25) years from the date hereof. SECTION 2.9 Responsibilities of the Sponsor. In connection with the issue and sale of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities: (a) to prepare for filing by the Trust with the Commission one or more registration statements on Form S-3 or Form S-4 in relation to the Preferred Securities, including any amendments thereto; (b) to determine the States in which to take appropriate action to qualify or register for sale or exchange all or part of the Preferred Securities and to do any and all such acts, other than actions which must be taken by the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States; (c) to prepare for filing by the Trust an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing or quotation upon notice of issuance of any Preferred Securities; (d) to prepare for filing by the Trust with the Commission a registration statement on Form 8-A relating to the registration of the class of Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto; (e) to prepare for filing by the Trust with the Commission an Issuer Tender Offer Statement on Schedule 13E-3 or Schedule 13E-4, as necessary, or any other appropriate document or schedule and any amendments thereto; (f) to negotiate the terms of an underwriting agreement and pricing agreement providing for the sale of the Preferred Securities; and (g) to negotiate the terms of one or more dealer manager agreements, depositary agreements, exchange agent agreements, information agent agreements or other agreements as may be required in connection with an Exchange or the tender offer component of such Exchange. SECTION 2.10 Declaration Binding on Securities Holders. Every Person by virtue of having become a holder of a Security or any interest therein in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration. ARTICLE III TRUSTEES SECTION 3.1 Trustees. The number of Trustees initially shall be four (4), and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor. The Sponsor is entitled to appoint 5 8 or remove without cause any Trustee at any time; provided, however, that the number of Trustees shall in no event be less than two (2); provided further that one Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or that, if not a natural person, is an entity which has its principal place of business in the State of Delaware (the "Delaware Trustee"); provided further that there shall be at least one trustee who is an employee or officer of, or is affiliated with the Parent (a "Regular Trustee"). SECTION 3.2 Regular Trustees. The initial Regular Trustees shall be John D. Finnegan, Walter G. Borst and Martin I. Darvick. (a) except as expressly set forth in this Declaration, any power of the Regular Trustees may be exercised by, or with the consent of, any one such Regular Trustee. (b) unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act, any Regular Trustee is authorized to execute on behalf of the Trust any documents which the Regular Trustees have the power and authority to cause the Trust to execute pursuant to Section 2.6; and (c) a Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing any documents which the Regular Trustees have power and authority to cause the Trust to execute pursuant to Section 2.6. SECTION 3.3 Delaware Trustee. The initial Delaware Trustee shall be Wilmington Trust Company. Notwithstanding any other provision of this Declaration, the Delaware Trustee shall not be entitled to exercise any of the powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Regular Trustees described in this Declaration. The Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Business Trust Act. Notwithstanding anything herein to the contrary, the Delaware Trustee shall not be liable for the acts or omissions to act of the Trust or of the Regular Trustees except such acts as the Delaware Trustee is expressly obligated or authorized to undertake under this Declaration or the Business Trust Act and except for the gross negligence or willful misconduct of the Delaware Trustee. SECTION 3.4 Institutional Trustee. Prior to the issuance of the Preferred Securities and Common Securities, the Sponsor shall appoint another trustee (the "Institutional Trustee") meeting the requirements of an eligible trustee of the Trust Indenture Act of 1939, as amended, by the execution of an amendment to this Declaration executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the Delaware Trustee. SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration. The recitals contained in this Declaration shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Declaration. 6 9 ARTICLE IV LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 4.1 Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence or willful misconduct with respect to such acts or omissions; and (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to holders of Securities might properly be paid. SECTION 4.2 Fiduciary Duty. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person; (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between Covered Persons; or (ii) whenever this Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any holder of Securities, the Indemnified Person shall resolve such conflict of interest, take action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise; and (c) Whenever in this Declaration an Indemnified Person is permitted or required to make a decision: (i) in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and 7 10 shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person; or (ii) in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. SECTION 4.3 Indemnification. (a) (i) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Parent Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Trust) by reason of the fact that he is or was a Parent Indemnified Person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo ontendere or its equivalent, shall not, of itself, create a presumption that the Parent Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (ii) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Parent Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Trust to procure a judgment in its favor by reason of the fact that he is or was a Parent Indemnified Person against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Parent Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. (iii) To the extent that a Parent Indemnified Person shall be successful on the merits or otherwise (including dismissal of an action without prejudice or the settlement of an action without admission of liability) in defense of any action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any claim, issue or matter therein, he shall be indemnified, to the full extent permitted by law, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (iv) Any indemnification under paragraphs (i) and (ii) of this Section 4.3(a) (unless ordered by a court) shall be made by the Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Parent Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Regular Trustees by a majority 8 11 vote of a quorum consisting of such Regular Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion, or (3) by the holders of the Common Securities of the Trust. (v) Expenses (including attorneys' fees) incurred by a Parent Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Parent Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Debenture Issuer as authorized in this Section 4.3(a). Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer if a determination is reasonably and promptly made (i) by the Regular Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion or (iii) the holders of the Common Securities of the Trust, that, based upon the facts known to the Regular Trustees, counsel or the holders of the Common Securities of the Trust at the time such determination is made, such Parent Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Trust, or, with respect to any criminal proceeding, that such Parent Indemnified Person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Regular Trustees, independent legal counsel or holders of the Common Securities of the Trust reasonably determine that such person deliberately breached his duty to the Trust or to the holders of the Common Securities of the Trust or holders of the Preferred Securities of the Trust. (vi) The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 4.3(a) shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Debenture Issuer or the holders of the Preferred Securities of the Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section 4.3(a) shall be deemed to be provided by a contract between the Debenture Issuer and each Parent Indemnified Person who serves in such capacity at any time while this Section 4.3(a) is in effect. Any repeal or modification of this Section 4.3(a) shall not affect any rights or obligations then existing. (vii) The Debenture Issuer or the Trust may purchase and maintain insurance on behalf of any person who is or was a Parent Indemnified Person against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 4.3(a). (viii) For purposes of this Section 4.3(a), references to "the Trust" shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 4.3(a) with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued. 9 12 (ix) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 4.3 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Parent Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person. (b) The Debenture Issuer agrees to indemnify (i) the Delaware Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Delaware Trustee (each of the Persons in (i) through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses (including reasonable legal fees and expenses) of defending itself against, or investigating, any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligation to indemnify as set forth in this Section 4.3(b) shall survive the termination of this Declaration. SECTION 4.4 Outside Businesses. Any Covered Person, the Sponsor and the Delaware Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the holders of Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor or the Delaware Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the Delaware Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person and the Delaware Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for or may act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS SECTION 5.1 Amendments. At any time before the issue of any Securities, this Declaration may be amended by, and only by, a written instrument executed by all of the Trustees and the Sponsor. SECTION 5.2 Termination of Trust. (a) The Trust shall dissolve and be of no further force or effect: (i) upon the bankruptcy of the Sponsor; (ii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or the revocation of the Sponsor's charter; (iii) upon the entry of a decree of judicial dissolution of the Sponsor, or the Trust; and 10 13 (iv) before the issue of any Securities, with the consent of all of the Regular Trustees and the Sponsor. (b) As soon as is practicable after the occurrence of an event referred to in Section 5.2(a), the Trustees shall, after satisfaction of all liabilities of the Trust in accordance with applicable law, file a certificate of cancellation with the Secretary of State of the State of Delaware and the Trust shall terminate. SECTION 5.3 Governing Law. This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws. SECTION 5.4 Headings. Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof. SECTION 5.5 Successors and Assigns. Whenever in this Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed. SECTION 5.6 Partial Enforceability. If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. SECTION 5.7 Counterparts. This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. * * * * * 11 14 IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. /s/ John D. Finnegan ------------------------------ Name: John D. Finnegan Title: Trustee /s/ Walter G. Borst ------------------------------ Name: Walter G. Borst Title: Trustee /s/ Martin I. Darvick ------------------------------ Name: Martin I. Darvick Title: Trustee WILMINGTON TRUST COMPANY as Trustee /s/ Emmett R. Harmon ------------------------------ Name: Emmett R. Harmon Title: Vice President GENERAL MOTORS CORPORATION as Sponsor /s/ John Finnegan ------------------------------ Name: John Finnegan Title: Vice President and Treasurer 12 15 EXHIBIT A CERTIFICATE OF TRUST OF GENERAL MOTORS CAPITAL TRUST D This Certificate of Trust of General Motors Capital Trust D (the "Trust") dated April 11, 1997, is hereby duly executed and filed by Wilmington Trust Company, a Delaware banking corporation, John D. Finnegan, Walter G. Borst and Martin I. Darvick, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et. seq.) 1. Name. The name of the business trust formed hereby is General Motors Capital Trust D. 2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware, is Wilmington Trust Company, 1100 N. Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration. 3. This Certificate of Trust shall be effective on April 11, 1997. IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have executed this Certificate of Trust as of the date first-above written. WILMINGTON TRUST COMPANY, as Trustee /s/ Emmett R. Harmon ------------------------------ Name: Emmett R. Harmon Title: Vice President /s/ John D. Finnegan ------------------------------ JOHN D. FINNEGAN, as Trustee /s/ Walter G. Borst ------------------------------ WALTER G. BORST, as Trustee /s/ Martin I. Darvick ------------------------------ MARTIN I. DARVICK, as Trustee EX-4.(B)(II) 5 EX-4(B)(II) 1 EXHIBIT 4(b)(ii) DECLARATION OF TRUST OF GENERAL MOTORS CAPITAL TRUST G Dated as of April 11, 1997 2 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS SECTION 1.1 Definitions 1 ARTICLE II ORGANIZATION SECTION 2.1 Name 4 SECTION 2.2 Office 4 SECTION 2.3 Purpose 4 SECTION 2.4 Authority 4 SECTION 2.5 Title to Property of the Trust 4 SECTION 2.6 Powers of the Trustees 5 SECTION 2.7 Filing of Certificate of Trust 6 SECTION 2.8 Duration of Trust. 6 SECTION 2.9 Responsibilities of the Sponsor 6 SECTION 2.10 Declaration Binding on Securities Holders 7 ARTICLE III TRUSTEES SECTION 3.1 Trustees 7 SECTION 3.2 Regular Trustees 7 SECTION 3.3 Delaware Trustee 8 SECTION 3.4 Institutional Trustee. 9 SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration 9 ARTICLE IV LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 4.1 Exculpation 9 SECTION 4.2 Fiduciary Duty 9 SECTION 4.3 Indemnification 11 SECTION 4.4 Outside Businesses 15 ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS SECTION 5.1 Amendments 15 SECTION 5.2 Termination of Trust 15 SECTION 5.3 Governing Law 16 SECTION 5.4 Headings 16 SECTION 5.5 Successors and Assigns 16 SECTION 5.6 Partial Enforceability 16 SECTION 5.7 Counterparts 16
3 DECLARATION OF TRUST OF CAPITAL TRUST G April 11, 1997 DECLARATION OF TRUST ("Declaration") dated and effective as of April 11, 1997 by the Trustees (as defined herein), the Sponsor (as defined herein), and by the holders, from time to time, of undivided beneficial interests in the Trust to be issued pursuant to this Declaration; WHEREAS, the Trustees and the Sponsor desire to establish a trust (the "Trust") pursuant to the Delaware Business Trust Act for the purpose of issuing and offering the Preferred Securities in an Exchange (as defined herein) and investing the Parent Shares received in certain Debentures; and NOW, THEREFORE, it being the intention of the parties hereto that the Trust constitute a business trust under the Business Trust Act and that this Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the exclusive benefit of the holders, from time to time, of the securities representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Declaration. ARTICLE I DEFINITIONS SECTION 1.1 Definitions. Unless the context otherwise requires: (a) capitalized terms used in this Declaration but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; (b) a term defined anywhere in this Declaration has the same meaning throughout; (c) all references to "the Declaration" or "this Declaration" are to this Declaration of Trust as modified, supplemented or amended from time to time; (d) all references in this Declaration to Articles and Sections are to Articles and Sections of this Declaration unless otherwise specified; and (e) a reference to the singular includes the plural and vice versa. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder. "Business Day" means any day other than a day on which banking institutions in New York, New York are authorized or required by law to close. "Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq., as it may be amended from time to time, or any successor legislation. 4 "Commission" means the Securities and Exchange Commission. "Common Securities" means securities representing an undivided beneficial interests in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Covered Person" means (a) any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Trust or (ii) the Trust's Affiliates and (b) any holder of Securities. "Debenture Issuer" means the Parent in its capacity as the issuer of the Debentures under the Indenture. "Debentures" means the series of Debentures to be issued by the Debenture Issuer and acquired by the Trust. "Debenture Trustee" means Wilmington Trust Company, as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee. "Delaware Trustee" has the meaning set forth in Section 3.1. "Exchange" means the exchange of Parent Shares for Preferred Securities, which exchange may include a cash or cash tender offer component. "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time or any successor legislation. "Fiduciary Indemnified Person" has the meaning set forth in Section 4.3(b). "Indemnified Person" means a Parent Indemnified Person or a Fiduciary Indemnified Person. "Indenture" means the indenture to be entered into between the Parent and the Debenture Trustee and any indenture supplemental thereto pursuant to which the Debentures are to be issued. "Institutional Trustee" has the meaning set forth in Section 3.4. "Parent" means General Motors Corporation , or any successor entity in a merger. "Parent Indemnified Person" means (a) any Regular Trustee; (b) any Affiliate of any Regular Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates. "Parent Shares" means depositary shares, each representing one-fourth of a share of Series G 9.12% Preference Stock, $0.10 par value per share, of the Parent which are exchanged for Preferred Securities in the Exchange. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Preferred Securities" means securities representing an undivided beneficial interests in the assets of the Trust with such terms as may be set out in any amendment to this Declaration. "Regular Trustee" means any Trustee other than the Delaware Trustee and the Institutional Trustee. "Securities" means the Common Securities and the Preferred Securities. 2 5 "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation. "Sponsor" means the Parent in its capacity as sponsor of the Trust. "Trustee" or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. ARTICLE II ORGANIZATION SECTION 2.1 Name. The Trust created by this Declaration is named "General Motors Capital Trust G." The activities of the Trust may be conducted under the name of the Trust or any other name deemed advisable by the Regular Trustees. SECTION 2.2 Office. The address of the principal office of the Trust is c/o General Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301. At any time, the Regular Trustees may designate another principal office. SECTION 2.3 Purpose. The exclusive purposes and functions of the Trust are (i) to issue the Preferred Securities in exchange for validly tendered Parent Shares and deliver such Parent Shares to the Debenture Issuer in consideration for its deposit in the Trust of Debentures and (ii) to issue the Common Securities to the Parent in exchange for cash and to invest the proceeds thereof in Debentures and in each case to engage in only those other activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to be classified for United States federal income tax purposes as a grantor trust. SECTION 2.4 Authority. Subject to the limitations provided in this Declaration, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Trust. An action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no person shall be required to inquire into the authority of the Regular Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Regular Trustees as set forth in this Declaration. SECTION 2.5 Title to Property of the Trust. Legal title to all assets of the Trust shall be vested in the Trust. SECTION 2.6 Powers of the Trustees. The Regular Trustees shall have the exclusive power and authority to cause the Trust to engage in the following activities: 3 6 (a) to issue the Preferred Securities and the Common Securities in accordance with this Declaration, in connection with the exchange of the Preferred Securities; provided, however, that the Trust may issue no more than one series of Preferred Securities and no more than one series of Common Securities, and, provided further, that there shall be no interests in the Trust other than the Securities and the issuance of the Securities shall be limited to the one-time simultaneous issuance of both Preferred Securities and Common Securities; (b) in connection with the issue and exchange of the Preferred Securities, at the direction of the Sponsor, to: (i) execute and file with the Commission one or more registration statements on Form S-3 or Form S-4 prepared by the Sponsor, including any amendments thereto in relation to the Preferred Securities; (ii) execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary in order to qualify or register all or part of the Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale or exchange; (iii) execute and file an application, prepared by the Sponsor, to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing or quotation upon notice of issuance of any Preferred Securities; (iv) execute and file with the Commission a registration statement on Form 8-A, including any amendments thereto, prepared by the Sponsor relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Exchange Act; (v) prepare, execute and file with the Commission an Issuer Tender Offer Statement on Schedule 13E-3 or Schedule 13E-4, as necessary, or any other appropriate document or schedule, and any amendments thereto; (vi) execute and enter into an underwriting agreement and pricing agreement providing for the sale of the Preferred Securities; and (vii) execute and enter into one or more dealer manager agreements, depositary agreements, exchange agent agreements, information agent agreements or other agreements as may be required in connection with the Exchange or the tender offer component of such Exchange; (c) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors and consultants and provide for reasonable compensation for such services; (d) to incur expenses which are necessary or incidental to carry out any of the purposes of this Declaration; and (e) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing. SECTION 2.7 Filing of Certificate of Trust. On or after the date of execution of this Declaration, the Trustees shall cause the filing of the Certificate of Trust for the Trust in the form attached hereto as Exhibit A with the Secretary of State of the State of Delaware. 4 7 SECTION 2.8 Duration of Trust. The Trust, absent termination pursuant to the provisions of Section 5.2, shall have existence for twenty five (25) years from the date hereof. SECTION 2.9 Responsibilities of the Sponsor. In connection with the issue and sale of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities: (a) to prepare for filing by the Trust with the Commission one or more registration statements on Form S-3 or Form S-4 in relation to the Preferred Securities, including any amendments thereto; (b) to determine the States in which to take appropriate action to qualify or register for sale or exchange all or part of the Preferred Securities and to do any and all such acts, other than actions which must be taken by the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States; (c) to prepare for filing by the Trust an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing or quotation upon notice of issuance of any Preferred Securities; (d) to prepare for filing by the Trust with the Commission a registration statement on Form 8-A relating to the registration of the class of Preferred Securities under Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto; (e) to prepare for filing by the Trust with the Commission an Issuer Tender Offer Statement on Schedule 13E-3 or Schedule 13E-4, as necessary, or any other appropriate document or schedule and any amendments thereto; (f) to negotiate the terms of an underwriting agreement and pricing agreement providing for the sale of the Preferred Securities; and (g) to negotiate the terms of one or more dealer manager agreements, depositary agreements, exchange agent agreements, information agent agreements or other agreements as may be required in connection with an Exchange or the tender offer component of such Exchange. SECTION 2.10 Declaration Binding on Securities Holders. Every Person by virtue of having become a holder of a Security or any interest therein in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration. ARTICLE III TRUSTEES SECTION 3.1 Trustees. The number of Trustees initially shall be four (4), and thereafter the number of Trustees shall be such number as shall be fixed from time to time by a written instrument signed by the Sponsor. The Sponsor is entitled to appoint 5 8 or remove without cause any Trustee at any time; provided, however, that the number of Trustees shall in no event be less than two (2); provided further that one Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or that, if not a natural person, is an entity which has its principal place of business in the State of Delaware (the "Delaware Trustee"); provided further that there shall be at least one trustee who is an employee or officer of, or is affiliated with the Parent (a "Regular Trustee"). SECTION 3.2 Regular Trustees. The initial Regular Trustees shall be John D. Finnegan, Walter G. Borst and Martin I. Darvick. (a) except as expressly set forth in this Declaration, any power of the Regular Trustees may be exercised by, or with the consent of, any one such Regular Trustee. (b) unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act, any Regular Trustee is authorized to execute on behalf of the Trust any documents which the Regular Trustees have the power and authority to cause the Trust to execute pursuant to Section 2.6; and (c) a Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing any documents which the Regular Trustees have power and authority to cause the Trust to execute pursuant to Section 2.6. SECTION 3.3 Delaware Trustee. The initial Delaware Trustee shall be Wilmington Trust Company. Notwithstanding any other provision of this Declaration, the Delaware Trustee shall not be entitled to exercise any of the powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Regular Trustees described in this Declaration. The Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Business Trust Act. Notwithstanding anything herein to the contrary, the Delaware Trustee shall not be liable for the acts or omissions to act of the Trust or of the Regular Trustees except such acts as the Delaware Trustee is expressly obligated or authorized to undertake under this Declaration or the Business Trust Act and except for the gross negligence or willful misconduct of the Delaware Trustee. SECTION 3.4 Institutional Trustee. Prior to the issuance of the Preferred Securities and Common Securities, the Sponsor shall appoint another trustee (the "Institutional Trustee") meeting the requirements of an eligible trustee of the Trust Indenture Act of 1939, as amended, by the execution of an amendment to this Declaration executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the Delaware Trustee. SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration. The recitals contained in this Declaration shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Declaration. 6 9 ARTICLE IV LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 4.1 Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence or willful misconduct with respect to such acts or omissions; and (b) An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to holders of Securities might properly be paid. SECTION 4.2 Fiduciary Duty. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person; (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between Covered Persons; or (ii) whenever this Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any holder of Securities, the Indemnified Person shall resolve such conflict of interest, take action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise; and (c) Whenever in this Declaration an Indemnified Person is permitted or required to make a decision: (i) in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and 7 10 shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person; or (ii) in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law. SECTION 4.3 Indemnification. (a) (i) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Parent Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Trust) by reason of the fact that he is or was a Parent Indemnified Person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo ontendere or its equivalent, shall not, of itself, create a presumption that the Parent Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (ii) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Parent Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Trust to procure a judgment in its favor by reason of the fact that he is or was a Parent Indemnified Person against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Parent Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. (iii) To the extent that a Parent Indemnified Person shall be successful on the merits or otherwise (including dismissal of an action without prejudice or the settlement of an action without admission of liability) in defense of any action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any claim, issue or matter therein, he shall be indemnified, to the full extent permitted by law, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (iv) Any indemnification under paragraphs (i) and (ii) of this Section 4.3(a) (unless ordered by a court) shall be made by the Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Parent Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Regular Trustees by a majority 8 11 vote of a quorum consisting of such Regular Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion, or (3) by the holders of the Common Securities of the Trust. (v) Expenses (including attorneys' fees) incurred by a Parent Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Parent Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Debenture Issuer as authorized in this Section 4.3(a). Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer if a determination is reasonably and promptly made (i) by the Regular Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion or (iii) the holders of the Common Securities of the Trust, that, based upon the facts known to the Regular Trustees, counsel or the holders of the Common Securities of the Trust at the time such determination is made, such Parent Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Trust, or, with respect to any criminal proceeding, that such Parent Indemnified Person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Regular Trustees, independent legal counsel or holders of the Common Securities of the Trust reasonably determine that such person deliberately breached his duty to the Trust or to the holders of the Common Securities of the Trust or holders of the Preferred Securities of the Trust. (vi) The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 4.3(a) shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Debenture Issuer or the holders of the Preferred Securities of the Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section 4.3(a) shall be deemed to be provided by a contract between the Debenture Issuer and each Parent Indemnified Person who serves in such capacity at any time while this Section 4.3(a) is in effect. Any repeal or modification of this Section 4.3(a) shall not affect any rights or obligations then existing. (vii) The Debenture Issuer or the Trust may purchase and maintain insurance on behalf of any person who is or was a Parent Indemnified Person against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 4.3(a). (viii) For purposes of this Section 4.3(a), references to "the Trust" shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 4.3(a) with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued. 9 12 (ix) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 4.3 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Parent Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person. (b) The Debenture Issuer agrees to indemnify (i) the Delaware Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Delaware Trustee (each of the Persons in (i) through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses (including reasonable legal fees and expenses) of defending itself against, or investigating, any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligation to indemnify as set forth in this Section 4.3(b) shall survive the termination of this Declaration. SECTION 4.4 Outside Businesses. Any Covered Person, the Sponsor and the Delaware Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the holders of Securities shall have no rights by virtue of this Declaration in and to such independent ventures or the income or profits derived therefrom and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor or the Delaware Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the Delaware Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person and the Delaware Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for or may act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. ARTICLE V AMENDMENTS, TERMINATION, MISCELLANEOUS SECTION 5.1 Amendments. At any time before the issue of any Securities, this Declaration may be amended by, and only by, a written instrument executed by all of the Trustees and the Sponsor. SECTION 5.2 Termination of Trust. (a) The Trust shall dissolve and be of no further force or effect: (i) upon the bankruptcy of the Sponsor; (ii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or the revocation of the Sponsor's charter; (iii) upon the entry of a decree of judicial dissolution of the Sponsor, or the Trust; and 10 13 (iv) before the issue of any Securities, with the consent of all of the Regular Trustees and the Sponsor. (b) As soon as is practicable after the occurrence of an event referred to in Section 5.2(a), the Trustees shall, after satisfaction of all liabilities of the Trust in accordance with applicable law, file a certificate of cancellation with the Secretary of State of the State of Delaware and the Trust shall terminate. SECTION 5.3 Governing Law. This Declaration and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws. SECTION 5.4 Headings. Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof. SECTION 5.5 Successors and Assigns. Whenever in this Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed. SECTION 5.6 Partial Enforceability. If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. SECTION 5.7 Counterparts. This Declaration may contain more than one counterpart of the signature page and this Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. * * * * * 11 14 IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. /s/ John D. Finnegan -------------------------------- Name: John D. Finnegan Title: Trustee /s/ Walter G. Borst -------------------------------- Name: Walter G. Borst Title: Trustee /s/ Martin I. Darvick -------------------------------- Name: Martin I. Darvick Title: Trustee WILMINGTON TRUST COMPANY as Trustee /s/ Emmett R. Harmon -------------------------------- Name: Emmett R. Harmon Title: Vice President GENERAL MOTORS CORPORATION as Sponsor /s/ John Finnegan -------------------------------- Name: John Finnegan Title: Vice President and Treasurer 12 15 EXHIBIT A CERTIFICATE OF TRUST OF GENERAL MOTORS CAPITAL TRUST G This Certificate of Trust of General Motors Capital Trust G (the "Trust") dated April 11, 1997, is hereby duly executed and filed by Wilmington Trust Company, a Delaware banking corporation, John D. Finnegan, Walter G. Borst and Martin I. Darvick, as trustees, to form a business trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et. seq.) 1. Name. The name of the business trust formed hereby is General Motors Capital Trust G. 2. Delaware Trustee. The name and business address of the trustee of the Trust in the State of Delaware, is Wilmington Trust Company, 1100 N. Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration. 3. This Certificate of Trust shall be effective on April 11, 1997. IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have executed this Certificate of Trust as of the date first-above written. WILMINGTON TRUST COMPANY, as Trustee /s/ Emmett R. Harmon -------------------------------- Name: Emmett R. Harmon Title: Vice President /s/ John D. Finnegan -------------------------------- JOHN D. FINNEGAN, as Trustee /s/ Walter G. Borst -------------------------------- WALTER G. BORST, as Trustee /s/ Martin I. Darvick -------------------------------- MARTIN I. DARVICK, as Trustee EX-23.(A) 6 EX-23(A) 1 EXHIBIT 23(A) CONSENT OF INDEPENDENT AUDITORS General Motors Corporation: We consent to the incorporation by reference in this Registration Statement on Form S-4 of our reports dated January 28, 1997 appearing in the Annual Report on Form 10-K of General Motors Corporation for the year ended December 31, 1996 and to the reference to us under the heading "Experts" in this Registration Statement. Deloitte & Touche LLP Detroit, Michigan April 15, 1997 EX-25.(A) 7 EX-25(A) 1 EXHIBIT 25(a) Registration No. ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___ WILMINGTON TRUST COMPANY (Exact name of trustee as specified in its charter) Delaware 51-0055023 (State of incorporation) (I.R.S. employer identification no.) Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 (Address of principal executive offices) Cynthia L. Corliss Vice President and Trust Counsel Wilmington Trust Company Rodney Square North Wilmington, Delaware 19890 (302) 651-8516 (Name, address and telephone number of agent for service) GENERAL MOTORS CORPORATION (Exact name of obligor as specified in its charter) Delaware 38-0572515 (State of incorporation) (I.R.S. employer identification no.) 100 Renaissance Center Detroit, Michigan 48243-7301 (Address of principal executive offices) (Zip Code) ___% Junior Subordinated Deferrable Interest Debentures, Series D, of General Motors Corporation (Title of the indenture securities) ================================================================================ 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee. ITEM 3. LIST OF EXHIBITS. List below all exhibits filed as part of this Statement of Eligibility and Qualification. A. Copy of the Charter of Wilmington Trust Company, which includes the certificate of authority of Wilmington Trust Company to commence business and the authorization of Wilmington Trust Company to exercise corporate trust powers. B. Copy of By-Laws of Wilmington Trust Company. C. Consent of Wilmington Trust Company required by Section 321(b) of Trust Indenture Act. D. Copy of most recent Report of Condition of Wilmington Trust Company. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 10th day of April, 1997. WILMINGTON TRUST COMPANY [SEAL] Attest: /s/ W. Chris Sponenberg By:/s/ Emmett R. Harmon --------------------------- ----------------------------- Assistant Secretary Name: Emmett R. Harmon Title: Vice President 2 3 EXHIBIT A AMENDED CHARTER WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON MAY 9, 1987 4 AMENDED CHARTER OR ACT OF INCORPORATION OF WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows: FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY. SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority. THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.: (1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the 5 Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. (2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. (3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. (4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. (5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. (6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. (7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. 2 6 (8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. (9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. (10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. (11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual 3 7 owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. (b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers: (1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. (2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. (3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. (4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. (5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. 4 8 (6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of: (1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and (2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock"). (b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following: (1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; (2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of 5 9 stock and whether such dividends shall be cumulative or non-cumulative; (3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. (5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. (6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and (7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. (c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. (2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article FOURTH), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to 6 10 receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. (3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. (d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock. 7 11 (f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon. FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board. (b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. (c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the 8 12 Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose. (d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board. (e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee. (f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. (g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. SIXTH: - The Directors shall choose such officers, agent and servants as may be provided in the By-Laws as they may from time to time find necessary or proper. SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended. EIGHTH: - This Act shall be deemed and taken to be a private Act. 9 13 NINTH: - This Corporation is to have perpetual existence. TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever. TWELFTH: - The Corporation may transact business in any part of the world. THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class). FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them. FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article FIFTEENTH: (A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or 10 14 (C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or (D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or (E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to any one or more of clauses (A) through (E) of paragraph 1 of the section (a). (b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation of By-Laws if such business combination has been approved by a majority of the whole Board. (c) For the purposes of this Article FIFTEENTH: (1) A "person" shall mean any individual firm, corporation or other entity. (2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on 11 15 such business combination, or immediately prior to the consummation of any such transaction: (A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or (B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or (C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) A person shall be the "beneficial owner" of any Voting Shares: (A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or (B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or (C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation. (4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. (5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. 12 16 (6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect in December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,00,000 or more. (e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation. SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended. (b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification." 13 17 EXHIBIT B BY-LAWS WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON JANUARY 16, 1997 18 BY-LAWS OF WILMINGTON TRUST COMPANY ARTICLE I STOCKHOLDERS' MEETINGS Section 1. The Annual Meeting of Stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time, or place as may be designated by resolution by the Board of Directors. Section 2. Special meetings of all stockholders may be called at any time by the Board of Directors, the Chairman of the Board or the President. Section 3. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting. Section 4. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a small number of shares may adjourn, from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each shares of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein. ARTICLE II DIRECTORS Section 1. The number and classification of the Board of Directors shall be as set forth in the Charter of the Bank. Section 2. No person who has attained the age of seventy-two (72) years shall be nominated for election to the Board of Directors of the Company, provided, however, that this limitation shall not apply to any person who was serving as director of the Company on September 16, 1971. Section 3. The class of Directors so elected shall hold office for three years or until their successors are elected and qualified. Section 4. The affairs and business of the Company shall be managed and conducted by the Board of Directors. Section 5. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its 19 members, or at the call of the Chairman of the Board of Directors or the President. Section 6. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board of Directors or by the President, and shall be called upon the written request of a majority of the directors. Section 7. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors. Section 8. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting. Section 9. In the event of the death, resignation, removal, inability to act, or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified. Section 10. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, a Trust Committee, an Audit Committee and a Compensation Committee, and shall elect from its own members a Chairman of the Board of Directors and a President who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Treasurer, who may be the same person, may appoint at any time such other committees and elect or appoint such other officers as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. Section 11. The Board of Directors may at any time remove, with or without cause, any member of any Committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor. Section 12. The Board of Directors may designate an officer to be in charge of such of the departments or division of the Company as it may deem advisable. ARTICLE III COMMITTEES Section I. Executive Committee (A) The Executive Committee shall be composed of not more than nine members who shall be selected by the Board of Directors from its own members and who 2 20 shall hold office during the pleasure of the Board. (B) The Executive Committee shall have all the powers of the Board of Directors when it is not in session to transact all business for and in behalf of the Company that may be brought before it. (C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee or at the call of the Chairman of the Board of Directors. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present. (D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting. (E) The Executive Committee shall advise and superintend all investments that may be made of the funds of the Company, and shall direct the disposal of the same, in accordance with such rules and regulations as the Board of Directors from time to time make. (F) In the event of a state of disaster of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these By-Laws any two available members of the Executive Committee as constituted immediately prior to such disaster shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article III of these By-Laws; and if less than three members of the Trust Committee is constituted immediately prior to such disaster shall be available for the transaction of its business, such Executive Committee shall also be empowered to exercise all of the powers reserved to the Trust Committee under Article III Section 2 hereof. In the event of the unavailability, at such time, of a minimum of two members of such Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This By-Law shall be subject to implementation by Resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these By-Laws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementary Resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these By-Laws. 3 21 Section 2. Trust Committee (A) The Trust Committee shall be composed of not more than thirteen members who shall be selected by the Board of Directors, a majority of whom shall be members of the Board of Directors and who shall hold office during the pleasure of the Board. (B) The Trust Committee shall have general supervision over the Trust Department and the investment of trust funds, in all matters, however, being subject to the approval of the Board of Directors. (C) The Trust Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members or at the call of its chairman. A majority of its members shall be necessary to constitute a quorum for the transaction of business. (D) Minutes of each meeting of the Trust Committee shall be kept and promptly submitted to the Board of Directors. (E) The Trust Committee shall have the power to appoint Committees and/or designate officers or employees of the Company to whom supervision over the investment of trust funds may be delegated when the Trust Committee is not in session. Section 3. Audit Committee (A) The Audit Committee shall be composed of five members who shall be selected by the Board of Directors from its own members, none of whom shall be an officer of the Company, and shall hold office at the pleasure of the Board. (B) The Audit Committee shall have general supervision over the Audit Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable. (C) The Audit Committee shall meet whenever and wherever the majority of its members shall deem it to be proper for the transaction of its business, and a majority of its Committee shall constitute a quorum. Section 4. Compensation Committee (A) The Compensation Committee shall be composed of not more than 4 22 five (5) members who shall be selected by the Board of Directors from its own members who are not officers of the Company and who shall hold office during the pleasure of the Board. (B) The Compensation Committee shall in general advise upon all matters of policy concerning the Company brought to its attention by the management and from time to time review the management of the Company, major organizational matters, including salaries and employee benefits and specifically shall administer the Executive Incentive Compensation Plan. (C) Meetings of the Compensation Committee may be called at any time by the Chairman of the Compensation Committee, the Chairman of the Board of Directors, or the President of the Company. Section 5. Associate Directors (A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve during the pleasure of the Board. (B) An associate director shall be entitled to attend all directors meetings and participate in the discussion of all matters brought to the Board, with the exception that he would have no right to vote. An associate director will be eligible for appointment to Committees of the Company, with the exception of the Executive Committee, Audit Committee and Compensation Committee, which must be comprised solely of active directors. Section 6. Absence or Disqualification of Any Member of a Committee (A) In the absence or disqualification of any member of any Committee created under Article III of the By-Laws of this Company, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absence or disqualified member. ARTICLE IV OFFICERS Section 1. The Chairman of the Board of Directors shall preside at all meetings of the Board and shall have such further authority and powers and shall perform such duties as the Board of Directors may from time to time confer and direct. He shall also exercise such powers and perform such duties as may from time to time be agreed upon between himself and the President of the Company. Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board of 5 23 Directors shall preside at all meetings of the Board of Directors at which the Chairman of the Board shall not be present and shall have such further authority and powers and shall perform such duties as the Board of Directors or the Chairman of the Board may from time to time confer and direct. Section 3. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute or assigned to him by the Board of Directors in the absence of the Chairman of the Board the President shall have the powers and duties of the Chairman of the Board. Section 4. The Chairman of the Board of Directors or the President as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors, and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office. Section 5. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all the duties of the Chairman of the Board of Directors and/or the President and such other powers and duties as may from time to time be assigned to them by the Board of Directors, the Executive Committee, the Chairman of the Board or the President and by the officer in charge of the department or division to which they are assigned. Section 6. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the Committees thereof, to the keeping of accurate minutes of all such meetings and to recording the same in the minute books of the Company. In addition to the other notice requirements of these By-Laws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any other meeting. He shall have custody of the corporate seal and shall affix the same to any documents requiring such corporate seal and to attest the same. Section 7. The Treasurer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all the transactions of the Company. He shall have general supervision of the expenditures of the Company and shall report to the Board of Directors at each regular meeting of the condition of the Company, and perform such other duties as may be assigned to him from time to time by the Board of Directors of the Executive Committee. Section 8. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors at appropriate times a report relating to the general condition and internal operations of the Company. 6 24 There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller. Section 9. The officer designated by the Board of Directors to be in charge of the Audit Division of the Company with such title as the Board of Directors shall prescribe, shall report to and be directly responsible only to the Board of Directors. There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Division. Section 10. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office Assistant Secretary of this Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to whom they are assigned. Section 11. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, Chairman of the Board of Directors or the President and the officer in charge of the department or division to which they are assigned. ARTICLE V STOCK AND STOCK CERTIFICATES Section 1. Shares of stock shall be transferrable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 2. Certificate of stock shall bear the signature of the President or any Vice President, however denominated by the Board of Directors and countersigned by the Secretary or Treasurer or an Assistant Secretary, and the seal of the corporation shall be engraved thereon. Each certificate shall recite that the stock represented thereby is transferrable only upon the books of the Company by the holder thereof or his attorney, upon surrender of the certificate properly endorsed. Any certificate of stock surrendered to the Company shall be cancelled at the time of transfer, and before a new certificate or certificates shall be issued in lieu thereof. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee. Section 3. The Board of Directors of the Company is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of 7 25 any dividend, or to any allotment or rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days proceeding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent. ARTICLE VI SEAL Section 1. The corporate seal of the Company shall be in the following form: Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware." ARTICLE VII FISCAL YEAR Section 1. The fiscal year of the Company shall be the calendar year. ARTICLE VIII EXECUTION OF INSTRUMENTS OF THE COMPANY Section 1. The Chairman of the Board, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as although expressly authorized by the Board of Directors and/or the Executive Committee. 8 26 ARTICLE IX COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES Section 1. Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be employed by the Company for such special services as the Board of Directors may from time to time determine and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors. ARTICLE X INDEMNIFICATION Section 1. (A) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Corporation shall indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Corporation. (B) The Corporation shall pay the expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a Director officer in his capacity as a Director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Director or officer to repay all amounts advanced if it should be ultimately determined that the Director or officer is not entitled to be indemnified under this Article or otherwise. (C) If a claim for indemnification or payment of expenses, under this Article X is not paid in full within ninety days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving 9 27 that the claimant was not entitled to the requested indemnification of payment of expenses under applicable law. (D) The rights conferred on any person by this Article X shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these By-Laws, agreement, vote of stockholders or disinterested Directors or otherwise. (E) Any repeal or modification of the foregoing provisions of this Article X shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. ARTICLE XI AMENDMENTS TO THE BY-LAWS Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, and any new By-Law or By-Laws adopted at any regular or special meeting of the Board of Directors by a vote of the majority of all the members of the Board of Directors then in office. 10 28 EXHIBIT C SECTION 321(b) CONSENT Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor. WILMINGTON TRUST COMPANY Dated: April 10, 1997 By: /s/ Emmett R. Harmon ------------------------------ Name: Emmett R. Harmon Title: Vice President 29 EXHIBIT D NOTICE This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements. R E P O R T O F C O N D I T I O N Consolidating domestic subsidiaries of the WILMINGTON TRUST COMPANY of WILMINGTON - ----------------------------------------------- ------------------ Name of Bank City in the State of DELAWARE , at the close of business on December 31, 1996. ------------
ASSETS Thousands of dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . 213,895 Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465,818 Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752,297 Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,000 Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . 39,190 Loans and lease financing receivables: Loans and leases, net of unearned income. . . . . . . 3,634,003 LESS: Allowance for loan and lease losses. . . . . . 51,847 LESS: Allocated transfer risk reserve. . . . . . . . 0 Loans and leases, net of unearned income, allowance, and reserve . . . . . . 3,582,156 Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . 89,129 Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,520 Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . 52 Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . 0 Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,593 Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114,300 Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,359,950
CONTINUED ON NEXT PAGE 30 LIABILITIES Deposits: In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,749,697 Noninterest-bearing . . . . . . . . . . . . . . . 852,790 Interest-bearing . . . . . . . . . . . . . . . . . 2,896,907 Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77,825 Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . 192,295 Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . 53,526 Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /////// With original maturity of one year or less . . . . . . . . . . . . . . . . . 714,000 With original maturity of more than one year . . . . . . . . . . . . . . . . 43,000 Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . 0 Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . 0 Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,756 Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,929,099 Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . 0 EQUITY CAPITAL Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . 0 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118 Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . 367,371 Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . 862 Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430,851 Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . 5,359,950
2 EX-25.(B) 8 EX-25(B) 1 EXHIBIT 25(b) Registration No. ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___ WILMINGTON TRUST COMPANY (Exact name of trustee as specified in its charter) Delaware 51-0055023 (State of incorporation) (I.R.S. employer identification no.) Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 (Address of principal executive offices) Cynthia L. Corliss Vice President and Trust Counsel Wilmington Trust Company Rodney Square North Wilmington, Delaware 19890 (302) 651-8516 (Name, address and telephone number of agent for service) GENERAL MOTORS CORPORATION (Exact name of obligor as specified in its charter) Delaware 38-0572515 (State of incorporation) (I.R.S. employer identification no.) 100 Renaissance Center Detroit, Michigan 48243-7301 (Address of principal executive offices) (Zip Code) Guarantee of the Series D Preferred Securities by General Motors Corporation (Title of the indenture securities) ================================================================================ 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee. ITEM 3. LIST OF EXHIBITS. List below all exhibits filed as part of this Statement of Eligibility and Qualification. A. Copy of the Charter of Wilmington Trust Company, which includes the certificate of authority of Wilmington Trust Company to commence business and the authorization of Wilmington Trust Company to exercise corporate trust powers. B. Copy of By-Laws of Wilmington Trust Company. C. Consent of Wilmington Trust Company required by Section 321(b) of Trust Indenture Act. D. Copy of most recent Report of Condition of Wilmington Trust Company. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 10th day of April, 1997. WILMINGTON TRUST COMPANY [SEAL] Attest: /s/ W. Chris Sponenberg By:/s/ Emmett R. Harmon ---------------------------- --------------------------- Assistant Secretary Name: Emmett R. Harmon Title: Vice President 2 3 EXHIBIT A AMENDED CHARTER WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON MAY 9, 1987 4 AMENDED CHARTER OR ACT OF INCORPORATION OF WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows: FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY. SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority. THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.: (1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the 5 Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. (2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. (3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. (4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. (5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. (6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. (7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. 2 6 (8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. (9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. (10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. (11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual 3 7 owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. (b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers: (1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. (2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. (3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. (4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. (5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. 4 8 (6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of: (1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and (2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock"). (b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following: (1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; (2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of 5 9 stock and whether such dividends shall be cumulative or non-cumulative; (3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. (5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. (6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and (7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. (c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. (2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article FOURTH), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to 6 10 receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. (3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. (d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock. 7 11 (f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon. FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board. (b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. (c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the 8 12 Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose. (d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board. (e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee. (f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. (g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. SIXTH: - The Directors shall choose such officers, agent and servants as may be provided in the By-Laws as they may from time to time find necessary or proper. SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended. EIGHTH: - This Act shall be deemed and taken to be a private Act. 9 13 NINTH: - This Corporation is to have perpetual existence. TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever. TWELFTH: - The Corporation may transact business in any part of the world. THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class). FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them. FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article FIFTEENTH: (A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or 10 14 (C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or (D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or (E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to any one or more of clauses (A) through (E) of paragraph 1 of the section (a). (b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation of By-Laws if such business combination has been approved by a majority of the whole Board. (c) For the purposes of this Article FIFTEENTH: (1) A "person" shall mean any individual firm, corporation or other entity. (2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on 11 15 such business combination, or immediately prior to the consummation of any such transaction: (A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or (B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or (C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) A person shall be the "beneficial owner" of any Voting Shares: (A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or (B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or (C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation. (4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. (5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. 12 16 (6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect in December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,00,000 or more. (e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation. SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended. (b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification." 13 17 EXHIBIT B BY-LAWS WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON JANUARY 16, 1997 18 BY-LAWS OF WILMINGTON TRUST COMPANY ARTICLE I STOCKHOLDERS' MEETINGS Section 1. The Annual Meeting of Stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time, or place as may be designated by resolution by the Board of Directors. Section 2. Special meetings of all stockholders may be called at any time by the Board of Directors, the Chairman of the Board or the President. Section 3. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting. Section 4. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a small number of shares may adjourn, from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each shares of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein. ARTICLE II DIRECTORS Section 1. The number and classification of the Board of Directors shall be as set forth in the Charter of the Bank. Section 2. No person who has attained the age of seventy-two (72) years shall be nominated for election to the Board of Directors of the Company, provided, however, that this limitation shall not apply to any person who was serving as director of the Company on September 16, 1971. Section 3. The class of Directors so elected shall hold office for three years or until their successors are elected and qualified. Section 4. The affairs and business of the Company shall be managed and conducted by the Board of Directors. Section 5. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its 19 members, or at the call of the Chairman of the Board of Directors or the President. Section 6. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board of Directors or by the President, and shall be called upon the written request of a majority of the directors. Section 7. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors. Section 8. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting. Section 9. In the event of the death, resignation, removal, inability to act, or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified. Section 10. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, a Trust Committee, an Audit Committee and a Compensation Committee, and shall elect from its own members a Chairman of the Board of Directors and a President who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Treasurer, who may be the same person, may appoint at any time such other committees and elect or appoint such other officers as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. Section 11. The Board of Directors may at any time remove, with or without cause, any member of any Committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor. Section 12. The Board of Directors may designate an officer to be in charge of such of the departments or division of the Company as it may deem advisable. ARTICLE III COMMITTEES Section I. Executive Committee (A) The Executive Committee shall be composed of not more than nine members who shall be selected by the Board of Directors from its own members and who 2 20 shall hold office during the pleasure of the Board. (B) The Executive Committee shall have all the powers of the Board of Directors when it is not in session to transact all business for and in behalf of the Company that may be brought before it. (C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee or at the call of the Chairman of the Board of Directors. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present. (D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting. (E) The Executive Committee shall advise and superintend all investments that may be made of the funds of the Company, and shall direct the disposal of the same, in accordance with such rules and regulations as the Board of Directors from time to time make. (F) In the event of a state of disaster of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these By-Laws any two available members of the Executive Committee as constituted immediately prior to such disaster shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article III of these By-Laws; and if less than three members of the Trust Committee is constituted immediately prior to such disaster shall be available for the transaction of its business, such Executive Committee shall also be empowered to exercise all of the powers reserved to the Trust Committee under Article III Section 2 hereof. In the event of the unavailability, at such time, of a minimum of two members of such Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This By-Law shall be subject to implementation by Resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these By-Laws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementary Resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these By-Laws. 3 21 Section 2. Trust Committee (A) The Trust Committee shall be composed of not more than thirteen members who shall be selected by the Board of Directors, a majority of whom shall be members of the Board of Directors and who shall hold office during the pleasure of the Board. (B) The Trust Committee shall have general supervision over the Trust Department and the investment of trust funds, in all matters, however, being subject to the approval of the Board of Directors. (C) The Trust Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members or at the call of its chairman. A majority of its members shall be necessary to constitute a quorum for the transaction of business. (D) Minutes of each meeting of the Trust Committee shall be kept and promptly submitted to the Board of Directors. (E) The Trust Committee shall have the power to appoint Committees and/or designate officers or employees of the Company to whom supervision over the investment of trust funds may be delegated when the Trust Committee is not in session. Section 3. Audit Committee (A) The Audit Committee shall be composed of five members who shall be selected by the Board of Directors from its own members, none of whom shall be an officer of the Company, and shall hold office at the pleasure of the Board. (B) The Audit Committee shall have general supervision over the Audit Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable. (C) The Audit Committee shall meet whenever and wherever the majority of its members shall deem it to be proper for the transaction of its business, and a majority of its Committee shall constitute a quorum. Section 4. Compensation Committee (A) The Compensation Committee shall be composed of not more than 4 22 five (5) members who shall be selected by the Board of Directors from its own members who are not officers of the Company and who shall hold office during the pleasure of the Board. (B) The Compensation Committee shall in general advise upon all matters of policy concerning the Company brought to its attention by the management and from time to time review the management of the Company, major organizational matters, including salaries and employee benefits and specifically shall administer the Executive Incentive Compensation Plan. (C) Meetings of the Compensation Committee may be called at any time by the Chairman of the Compensation Committee, the Chairman of the Board of Directors, or the President of the Company. Section 5. Associate Directors (A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve during the pleasure of the Board. (B) An associate director shall be entitled to attend all directors meetings and participate in the discussion of all matters brought to the Board, with the exception that he would have no right to vote. An associate director will be eligible for appointment to Committees of the Company, with the exception of the Executive Committee, Audit Committee and Compensation Committee, which must be comprised solely of active directors. Section 6. Absence or Disqualification of Any Member of a Committee (A) In the absence or disqualification of any member of any Committee created under Article III of the By-Laws of this Company, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absence or disqualified member. ARTICLE IV OFFICERS Section 1. The Chairman of the Board of Directors shall preside at all meetings of the Board and shall have such further authority and powers and shall perform such duties as the Board of Directors may from time to time confer and direct. He shall also exercise such powers and perform such duties as may from time to time be agreed upon between himself and the President of the Company. Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board of 5 23 Directors shall preside at all meetings of the Board of Directors at which the Chairman of the Board shall not be present and shall have such further authority and powers and shall perform such duties as the Board of Directors or the Chairman of the Board may from time to time confer and direct. Section 3. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute or assigned to him by the Board of Directors in the absence of the Chairman of the Board the President shall have the powers and duties of the Chairman of the Board. Section 4. The Chairman of the Board of Directors or the President as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors, and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office. Section 5. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all the duties of the Chairman of the Board of Directors and/or the President and such other powers and duties as may from time to time be assigned to them by the Board of Directors, the Executive Committee, the Chairman of the Board or the President and by the officer in charge of the department or division to which they are assigned. Section 6. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the Committees thereof, to the keeping of accurate minutes of all such meetings and to recording the same in the minute books of the Company. In addition to the other notice requirements of these By-Laws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any other meeting. He shall have custody of the corporate seal and shall affix the same to any documents requiring such corporate seal and to attest the same. Section 7. The Treasurer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all the transactions of the Company. He shall have general supervision of the expenditures of the Company and shall report to the Board of Directors at each regular meeting of the condition of the Company, and perform such other duties as may be assigned to him from time to time by the Board of Directors of the Executive Committee. Section 8. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors at appropriate times a report relating to the general condition and internal operations of the Company. 6 24 There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller. Section 9. The officer designated by the Board of Directors to be in charge of the Audit Division of the Company with such title as the Board of Directors shall prescribe, shall report to and be directly responsible only to the Board of Directors. There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Division. Section 10. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office Assistant Secretary of this Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to whom they are assigned. Section 11. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, Chairman of the Board of Directors or the President and the officer in charge of the department or division to which they are assigned. ARTICLE V STOCK AND STOCK CERTIFICATES Section 1. Shares of stock shall be transferrable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 2. Certificate of stock shall bear the signature of the President or any Vice President, however denominated by the Board of Directors and countersigned by the Secretary or Treasurer or an Assistant Secretary, and the seal of the corporation shall be engraved thereon. Each certificate shall recite that the stock represented thereby is transferrable only upon the books of the Company by the holder thereof or his attorney, upon surrender of the certificate properly endorsed. Any certificate of stock surrendered to the Company shall be cancelled at the time of transfer, and before a new certificate or certificates shall be issued in lieu thereof. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee. Section 3. The Board of Directors of the Company is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of 7 25 any dividend, or to any allotment or rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days proceeding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent. ARTICLE VI SEAL Section 1. The corporate seal of the Company shall be in the following form: Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware." ARTICLE VII FISCAL YEAR Section 1. The fiscal year of the Company shall be the calendar year. ARTICLE VIII EXECUTION OF INSTRUMENTS OF THE COMPANY Section 1. The Chairman of the Board, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as although expressly authorized by the Board of Directors and/or the Executive Committee. 8 26 ARTICLE IX COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES Section 1. Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be employed by the Company for such special services as the Board of Directors may from time to time determine and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors. ARTICLE X INDEMNIFICATION Section 1. (A) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Corporation shall indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Corporation. (B) The Corporation shall pay the expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a Director officer in his capacity as a Director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Director or officer to repay all amounts advanced if it should be ultimately determined that the Director or officer is not entitled to be indemnified under this Article or otherwise. (C) If a claim for indemnification or payment of expenses, under this Article X is not paid in full within ninety days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving 9 27 that the claimant was not entitled to the requested indemnification of payment of expenses under applicable law. (D) The rights conferred on any person by this Article X shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these By-Laws, agreement, vote of stockholders or disinterested Directors or otherwise. (E) Any repeal or modification of the foregoing provisions of this Article X shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. ARTICLE XI AMENDMENTS TO THE BY-LAWS Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, and any new By-Law or By-Laws adopted at any regular or special meeting of the Board of Directors by a vote of the majority of all the members of the Board of Directors then in office. 10 28 EXHIBIT C SECTION 321(b) CONSENT Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor. WILMINGTON TRUST COMPANY Dated: April 10, 1997 By: /s/ Emmett R. Harmon ----------------------------- Name: Emmett R. Harmon Title: Vice President 29 EXHIBIT D NOTICE This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements. R E P O R T O F C O N D I T I O N Consolidating domestic subsidiaries of the WILMINGTON TRUST COMPANY of WILMINGTON - ----------------------------------------------- ------------------ Name of Bank City in the State of DELAWARE , at the close of business on December 31, 1996. ------------
ASSETS Thousands of dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . 213,895 Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465,818 Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752,297 Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,000 Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . 39,190 Loans and lease financing receivables: Loans and leases, net of unearned income. . . . . . . 3,634,003 LESS: Allowance for loan and lease losses. . . . . . 51,847 LESS: Allocated transfer risk reserve. . . . . . . . 0 Loans and leases, net of unearned income, allowance, and reserve . . . . . . 3,582,156 Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . 89,129 Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,520 Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . 52 Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . 0 Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,593 Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114,300 Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,359,950
CONTINUED ON NEXT PAGE 30 LIABILITIES Deposits: In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,749,697 Noninterest-bearing . . . . . . . . . . . . . . . . . 852,790 Interest-bearing. . . . . . . . . . . . . . . . . . . 2,896,907 Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77,825 Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . 192,295 Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . 53,526 Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /////// With original maturity of one year or less . . . . . . . . . . . . . . . . . 714,000 With original maturity of more than one year . . . . . . . . . . . . . . . . 43,000 Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . 0 Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . 0 Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,756 Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,929,099 Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . 0 EQUITY CAPITAL Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . 0 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118 Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . 367,371 Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . 862 Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430,851 Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . 5,359,950
2 EX-25.(C) 9 EX-25(C) 1 EXHIBIT 25(c) Registration No. ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) ___ WILMINGTON TRUST COMPANY (Exact name of trustee as specified in its charter) Delaware 51-0055023 (State of incorporation) (I.R.S. employer identification no.) Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 (Address of principal executive offices) Cynthia L. Corliss Vice President and Trust Counsel Wilmington Trust Company Rodney Square North Wilmington, Delaware 19890 (302) 651-8516 (Name, address and telephone number of agent for service) GENERAL MOTORS CORPORATION GENERAL MOTORS CAPITAL TRUST D (Exact name of obligor as specified in its charter) Delaware 38-0572515 Delaware [Pending] (State of incorporation) (I.R.S. employer identification no.) 100 Renaissance Center Detroit, Michigan 48243-7301 (Address of principal executive offices) (Zip Code) ___% Trust Originated Preferred Securities(SM) (TOPrS)(SM), Series D, of General Motors Capital Trust (Title of the indenture securities) ================================================================================ 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee. ITEM 3. LIST OF EXHIBITS. List below all exhibits filed as part of this Statement of Eligibility and Qualification. A. Copy of the Charter of Wilmington Trust Company, which includes the certificate of authority of Wilmington Trust Company to commence business and the authorization of Wilmington Trust Company to exercise corporate trust powers. B. Copy of By-Laws of Wilmington Trust Company. C. Consent of Wilmington Trust Company required by Section 321(b) of Trust Indenture Act. D. Copy of most recent Report of Condition of Wilmington Trust Company. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 10th day of April, 1997. WILMINGTON TRUST COMPANY [SEAL] Attest: /s/ W. Chris Sponenberg By:/s/ Emmett R. Harmon ----------------------------- --------------------------- Assistant Secretary Name: Emmett R. Harmon Title: Vice President 2 3 EXHIBIT A AMENDED CHARTER WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON MAY 9, 1987 4 AMENDED CHARTER OR ACT OF INCORPORATION OF WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows: FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY. SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority. THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.: (1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the 5 Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. (2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. (3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. (4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. (5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. (6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. (7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. 2 6 (8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. (9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. (10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. (11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual 3 7 owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. (b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers: (1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. (2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. (3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. (4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. (5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. 4 8 (6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of: (1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and (2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock"). (b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following: (1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; (2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of 5 9 stock and whether such dividends shall be cumulative or non-cumulative; (3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. (5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. (6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and (7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. (c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. (2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article FOURTH), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to 6 10 receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. (3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. (d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock. 7 11 (f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon. FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board. (b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. (c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the 8 12 Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose. (d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board. (e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee. (f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. (g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. SIXTH: - The Directors shall choose such officers, agent and servants as may be provided in the By-Laws as they may from time to time find necessary or proper. SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended. EIGHTH: - This Act shall be deemed and taken to be a private Act. 9 13 NINTH: - This Corporation is to have perpetual existence. TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever. TWELFTH: - The Corporation may transact business in any part of the world. THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class). FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them. FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article FIFTEENTH: (A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or 10 14 (C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or (D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or (E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to any one or more of clauses (A) through (E) of paragraph 1 of the section (a). (b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation of By-Laws if such business combination has been approved by a majority of the whole Board. (c) For the purposes of this Article FIFTEENTH: (1) A "person" shall mean any individual firm, corporation or other entity. (2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on 11 15 such business combination, or immediately prior to the consummation of any such transaction: (A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or (B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or (C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) A person shall be the "beneficial owner" of any Voting Shares: (A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or (B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or (C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation. (4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. (5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. 12 16 (6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect in December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,00,000 or more. (e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation. SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended. (b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification." 13 17 EXHIBIT B BY-LAWS WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON JANUARY 16, 1997 18 BY-LAWS OF WILMINGTON TRUST COMPANY ARTICLE I STOCKHOLDERS' MEETINGS Section 1. The Annual Meeting of Stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time, or place as may be designated by resolution by the Board of Directors. Section 2. Special meetings of all stockholders may be called at any time by the Board of Directors, the Chairman of the Board or the President. Section 3. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting. Section 4. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a small number of shares may adjourn, from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each shares of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein. ARTICLE II DIRECTORS Section 1. The number and classification of the Board of Directors shall be as set forth in the Charter of the Bank. Section 2. No person who has attained the age of seventy-two (72) years shall be nominated for election to the Board of Directors of the Company, provided, however, that this limitation shall not apply to any person who was serving as director of the Company on September 16, 1971. Section 3. The class of Directors so elected shall hold office for three years or until their successors are elected and qualified. Section 4. The affairs and business of the Company shall be managed and conducted by the Board of Directors. Section 5. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its 19 members, or at the call of the Chairman of the Board of Directors or the President. Section 6. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board of Directors or by the President, and shall be called upon the written request of a majority of the directors. Section 7. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors. Section 8. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting. Section 9. In the event of the death, resignation, removal, inability to act, or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified. Section 10. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, a Trust Committee, an Audit Committee and a Compensation Committee, and shall elect from its own members a Chairman of the Board of Directors and a President who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Treasurer, who may be the same person, may appoint at any time such other committees and elect or appoint such other officers as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. Section 11. The Board of Directors may at any time remove, with or without cause, any member of any Committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor. Section 12. The Board of Directors may designate an officer to be in charge of such of the departments or division of the Company as it may deem advisable. ARTICLE III COMMITTEES Section I. Executive Committee (A) The Executive Committee shall be composed of not more than nine members who shall be selected by the Board of Directors from its own members and who 2 20 shall hold office during the pleasure of the Board. (B) The Executive Committee shall have all the powers of the Board of Directors when it is not in session to transact all business for and in behalf of the Company that may be brought before it. (C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee or at the call of the Chairman of the Board of Directors. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present. (D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting. (E) The Executive Committee shall advise and superintend all investments that may be made of the funds of the Company, and shall direct the disposal of the same, in accordance with such rules and regulations as the Board of Directors from time to time make. (F) In the event of a state of disaster of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these By-Laws any two available members of the Executive Committee as constituted immediately prior to such disaster shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article III of these By-Laws; and if less than three members of the Trust Committee is constituted immediately prior to such disaster shall be available for the transaction of its business, such Executive Committee shall also be empowered to exercise all of the powers reserved to the Trust Committee under Article III Section 2 hereof. In the event of the unavailability, at such time, of a minimum of two members of such Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This By-Law shall be subject to implementation by Resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these By-Laws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementary Resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these By-Laws. 3 21 Section 2. Trust Committee (A) The Trust Committee shall be composed of not more than thirteen members who shall be selected by the Board of Directors, a majority of whom shall be members of the Board of Directors and who shall hold office during the pleasure of the Board. (B) The Trust Committee shall have general supervision over the Trust Department and the investment of trust funds, in all matters, however, being subject to the approval of the Board of Directors. (C) The Trust Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members or at the call of its chairman. A majority of its members shall be necessary to constitute a quorum for the transaction of business. (D) Minutes of each meeting of the Trust Committee shall be kept and promptly submitted to the Board of Directors. (E) The Trust Committee shall have the power to appoint Committees and/or designate officers or employees of the Company to whom supervision over the investment of trust funds may be delegated when the Trust Committee is not in session. Section 3. Audit Committee (A) The Audit Committee shall be composed of five members who shall be selected by the Board of Directors from its own members, none of whom shall be an officer of the Company, and shall hold office at the pleasure of the Board. (B) The Audit Committee shall have general supervision over the Audit Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable. (C) The Audit Committee shall meet whenever and wherever the majority of its members shall deem it to be proper for the transaction of its business, and a majority of its Committee shall constitute a quorum. Section 4. Compensation Committee (A) The Compensation Committee shall be composed of not more than 4 22 five (5) members who shall be selected by the Board of Directors from its own members who are not officers of the Company and who shall hold office during the pleasure of the Board. (B) The Compensation Committee shall in general advise upon all matters of policy concerning the Company brought to its attention by the management and from time to time review the management of the Company, major organizational matters, including salaries and employee benefits and specifically shall administer the Executive Incentive Compensation Plan. (C) Meetings of the Compensation Committee may be called at any time by the Chairman of the Compensation Committee, the Chairman of the Board of Directors, or the President of the Company. Section 5. Associate Directors (A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve during the pleasure of the Board. (B) An associate director shall be entitled to attend all directors meetings and participate in the discussion of all matters brought to the Board, with the exception that he would have no right to vote. An associate director will be eligible for appointment to Committees of the Company, with the exception of the Executive Committee, Audit Committee and Compensation Committee, which must be comprised solely of active directors. Section 6. Absence or Disqualification of Any Member of a Committee (A) In the absence or disqualification of any member of any Committee created under Article III of the By-Laws of this Company, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absence or disqualified member. ARTICLE IV OFFICERS Section 1. The Chairman of the Board of Directors shall preside at all meetings of the Board and shall have such further authority and powers and shall perform such duties as the Board of Directors may from time to time confer and direct. He shall also exercise such powers and perform such duties as may from time to time be agreed upon between himself and the President of the Company. Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board of 5 23 Directors shall preside at all meetings of the Board of Directors at which the Chairman of the Board shall not be present and shall have such further authority and powers and shall perform such duties as the Board of Directors or the Chairman of the Board may from time to time confer and direct. Section 3. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute or assigned to him by the Board of Directors in the absence of the Chairman of the Board the President shall have the powers and duties of the Chairman of the Board. Section 4. The Chairman of the Board of Directors or the President as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors, and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office. Section 5. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all the duties of the Chairman of the Board of Directors and/or the President and such other powers and duties as may from time to time be assigned to them by the Board of Directors, the Executive Committee, the Chairman of the Board or the President and by the officer in charge of the department or division to which they are assigned. Section 6. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the Committees thereof, to the keeping of accurate minutes of all such meetings and to recording the same in the minute books of the Company. In addition to the other notice requirements of these By-Laws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any other meeting. He shall have custody of the corporate seal and shall affix the same to any documents requiring such corporate seal and to attest the same. Section 7. The Treasurer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all the transactions of the Company. He shall have general supervision of the expenditures of the Company and shall report to the Board of Directors at each regular meeting of the condition of the Company, and perform such other duties as may be assigned to him from time to time by the Board of Directors of the Executive Committee. Section 8. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors at appropriate times a report relating to the general condition and internal operations of the Company. 6 24 There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller. Section 9. The officer designated by the Board of Directors to be in charge of the Audit Division of the Company with such title as the Board of Directors shall prescribe, shall report to and be directly responsible only to the Board of Directors. There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Division. Section 10. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office Assistant Secretary of this Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to whom they are assigned. Section 11. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, Chairman of the Board of Directors or the President and the officer in charge of the department or division to which they are assigned. ARTICLE V STOCK AND STOCK CERTIFICATES Section 1. Shares of stock shall be transferrable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 2. Certificate of stock shall bear the signature of the President or any Vice President, however denominated by the Board of Directors and countersigned by the Secretary or Treasurer or an Assistant Secretary, and the seal of the corporation shall be engraved thereon. Each certificate shall recite that the stock represented thereby is transferrable only upon the books of the Company by the holder thereof or his attorney, upon surrender of the certificate properly endorsed. Any certificate of stock surrendered to the Company shall be cancelled at the time of transfer, and before a new certificate or certificates shall be issued in lieu thereof. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee. Section 3. The Board of Directors of the Company is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of 7 25 any dividend, or to any allotment or rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days proceeding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent. ARTICLE VI SEAL Section 1. The corporate seal of the Company shall be in the following form: Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware." ARTICLE VII FISCAL YEAR Section 1. The fiscal year of the Company shall be the calendar year. ARTICLE VIII EXECUTION OF INSTRUMENTS OF THE COMPANY Section 1. The Chairman of the Board, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as although expressly authorized by the Board of Directors and/or the Executive Committee. 8 26 ARTICLE IX COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES Section 1. Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be employed by the Company for such special services as the Board of Directors may from time to time determine and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors. ARTICLE X INDEMNIFICATION Section 1. (A) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Corporation shall indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Corporation. (B) The Corporation shall pay the expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a Director officer in his capacity as a Director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Director or officer to repay all amounts advanced if it should be ultimately determined that the Director or officer is not entitled to be indemnified under this Article or otherwise. (C) If a claim for indemnification or payment of expenses, under this Article X is not paid in full within ninety days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving 9 27 that the claimant was not entitled to the requested indemnification of payment of expenses under applicable law. (D) The rights conferred on any person by this Article X shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these By-Laws, agreement, vote of stockholders or disinterested Directors or otherwise. (E) Any repeal or modification of the foregoing provisions of this Article X shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. ARTICLE XI AMENDMENTS TO THE BY-LAWS Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, and any new By-Law or By-Laws adopted at any regular or special meeting of the Board of Directors by a vote of the majority of all the members of the Board of Directors then in office. 10 28 EXHIBIT C SECTION 321(b) CONSENT Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor. WILMINGTON TRUST COMPANY Dated: April 10, 1997 By: /s/ Emmett R. Harmon --------------------------- Name: Emmett R. Harmon Title: Vice President 29 EXHIBIT D NOTICE This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements. R E P O R T O F C O N D I T I O N Consolidating domestic subsidiaries of the WILMINGTON TRUST COMPANY of WILMINGTON - ----------------------------------------------- ----------------- Name of Bank City in the State of DELAWARE , at the close of business on December 31, 1996. ------------
ASSETS Thousands of dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . 213,895 Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465,818 Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752,297 Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,000 Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . 39,190 Loans and lease financing receivables: Loans and leases, net of unearned income. . . . . . . 3,634,003 LESS: Allowance for loan and lease losses. . . . . . 51,847 LESS: Allocated transfer risk reserve. . . . . . . . 0 Loans and leases, net of unearned income, allowance, and reserve . . . . . . 3,582,156 Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . 89,129 Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,520 Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . 52 Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . 0 Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,593 Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114,300 Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,359,950
CONTINUED ON NEXT PAGE 30 LIABILITIES Deposits: In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,749,697 Noninterest-bearing . . . . . . . . . . . . . . . . 852,790 Interest-bearing . . . . . . . . . . . . . . . . . . 2,896,907 Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77,825 Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . 192,295 Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . 53,526 Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /////// With original maturity of one year or less . . . . . . . . . . . . . . . . . 714,000 With original maturity of more than one year . . . . . . . . . . . . . . . . 43,000 Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . 0 Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . 0 Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,756 Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,929,099 Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . 0 EQUITY CAPITAL Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . 0 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118 Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . 367,371 Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . 862 Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430,851 Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . 5,359,950
2 EX-25.(D) 10 EX-25(D) 1 EXHIBIT 25(d) Registration No. ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___ WILMINGTON TRUST COMPANY (Exact name of trustee as specified in its charter) Delaware 51-0055023 (State of incorporation) (I.R.S. employer identification no.) Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 (Address of principal executive offices) Cynthia L. Corliss Vice President and Trust Counsel Wilmington Trust Company Rodney Square North Wilmington, Delaware 19890 (302) 651-8516 (Name, address and telephone number of agent for service) GENERAL MOTORS CORPORATION (Exact name of obligor as specified in its charter) Delaware 38-0572515 (State of incorporation) (I.R.S. employer identification no.) 100 Renaissance Center Detroit, Michigan 48243-7301 (Address of principal executive offices) (Zip Code) ___% Junior Subordinated Deferrable Interest Debentures, Series G, of General Motors Corporation (Title of the indenture securities) ================================================================================ 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee. ITEM 3. LIST OF EXHIBITS. List below all exhibits filed as part of this Statement of Eligibility and Qualification. A. Copy of the Charter of Wilmington Trust Company, which includes the certificate of authority of Wilmington Trust Company to commence business and the authorization of Wilmington Trust Company to exercise corporate trust powers. B. Copy of By-Laws of Wilmington Trust Company. C. Consent of Wilmington Trust Company required by Section 321(b) of Trust Indenture Act. D. Copy of most recent Report of Condition of Wilmington Trust Company. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 10th day of April, 1997. WILMINGTON TRUST COMPANY [SEAL] Attest: /s/ W. Chris Sponenberg By:/s/ Emmett R. Harmon --------------------------- --------------------------- Assistant Secretary Name: Emmett R. Harmon Title: Vice President 2 3 EXHIBIT A AMENDED CHARTER WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON MAY 9, 1987 4 AMENDED CHARTER OR ACT OF INCORPORATION OF WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows: FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY. SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority. THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.: (1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the 5 Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. (2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. (3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. (4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. (5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. (6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. (7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. 2 6 (8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. (9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. (10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. (11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual 3 7 owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. (b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers: (1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. (2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. (3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. (4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. (5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. 4 8 (6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of: (1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and (2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock"). (b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following: (1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; (2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of 5 9 stock and whether such dividends shall be cumulative or non-cumulative; (3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. (5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. (6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and (7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. (c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. (2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article FOURTH), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to 6 10 receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. (3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. (d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock. 7 11 (f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon. FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board. (b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. (c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the 8 12 Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose. (d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board. (e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee. (f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. (g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. SIXTH: - The Directors shall choose such officers, agent and servants as may be provided in the By-Laws as they may from time to time find necessary or proper. SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended. EIGHTH: - This Act shall be deemed and taken to be a private Act. 9 13 NINTH: - This Corporation is to have perpetual existence. TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever. TWELFTH: - The Corporation may transact business in any part of the world. THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class). FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them. FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article FIFTEENTH: (A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or 10 14 (C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or (D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or (E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to any one or more of clauses (A) through (E) of paragraph 1 of the section (a). (b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation of By-Laws if such business combination has been approved by a majority of the whole Board. (c) For the purposes of this Article FIFTEENTH: (1) A "person" shall mean any individual firm, corporation or other entity. (2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on 11 15 such business combination, or immediately prior to the consummation of any such transaction: (A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or (B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or (C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) A person shall be the "beneficial owner" of any Voting Shares: (A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or (B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or (C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation. (4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. (5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. 12 16 (6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect in December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,00,000 or more. (e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation. SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended. (b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification." 13 17 EXHIBIT B BY-LAWS WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON JANUARY 16, 1997 18 BY-LAWS OF WILMINGTON TRUST COMPANY ARTICLE I STOCKHOLDERS' MEETINGS Section 1. The Annual Meeting of Stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time, or place as may be designated by resolution by the Board of Directors. Section 2. Special meetings of all stockholders may be called at any time by the Board of Directors, the Chairman of the Board or the President. Section 3. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting. Section 4. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a small number of shares may adjourn, from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each shares of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein. ARTICLE II DIRECTORS Section 1. The number and classification of the Board of Directors shall be as set forth in the Charter of the Bank. Section 2. No person who has attained the age of seventy-two (72) years shall be nominated for election to the Board of Directors of the Company, provided, however, that this limitation shall not apply to any person who was serving as director of the Company on September 16, 1971. Section 3. The class of Directors so elected shall hold office for three years or until their successors are elected and qualified. Section 4. The affairs and business of the Company shall be managed and conducted by the Board of Directors. Section 5. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its 19 members, or at the call of the Chairman of the Board of Directors or the President. Section 6. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board of Directors or by the President, and shall be called upon the written request of a majority of the directors. Section 7. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors. Section 8. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting. Section 9. In the event of the death, resignation, removal, inability to act, or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified. Section 10. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, a Trust Committee, an Audit Committee and a Compensation Committee, and shall elect from its own members a Chairman of the Board of Directors and a President who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Treasurer, who may be the same person, may appoint at any time such other committees and elect or appoint such other officers as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. Section 11. The Board of Directors may at any time remove, with or without cause, any member of any Committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor. Section 12. The Board of Directors may designate an officer to be in charge of such of the departments or division of the Company as it may deem advisable. ARTICLE III COMMITTEES Section I. Executive Committee (A) The Executive Committee shall be composed of not more than nine members who shall be selected by the Board of Directors from its own members and who 2 20 shall hold office during the pleasure of the Board. (B) The Executive Committee shall have all the powers of the Board of Directors when it is not in session to transact all business for and in behalf of the Company that may be brought before it. (C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee or at the call of the Chairman of the Board of Directors. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present. (D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting. (E) The Executive Committee shall advise and superintend all investments that may be made of the funds of the Company, and shall direct the disposal of the same, in accordance with such rules and regulations as the Board of Directors from time to time make. (F) In the event of a state of disaster of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these By-Laws any two available members of the Executive Committee as constituted immediately prior to such disaster shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article III of these By-Laws; and if less than three members of the Trust Committee is constituted immediately prior to such disaster shall be available for the transaction of its business, such Executive Committee shall also be empowered to exercise all of the powers reserved to the Trust Committee under Article III Section 2 hereof. In the event of the unavailability, at such time, of a minimum of two members of such Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This By-Law shall be subject to implementation by Resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these By-Laws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementary Resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these By-Laws. 3 21 Section 2. Trust Committee (A) The Trust Committee shall be composed of not more than thirteen members who shall be selected by the Board of Directors, a majority of whom shall be members of the Board of Directors and who shall hold office during the pleasure of the Board. (B) The Trust Committee shall have general supervision over the Trust Department and the investment of trust funds, in all matters, however, being subject to the approval of the Board of Directors. (C) The Trust Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members or at the call of its chairman. A majority of its members shall be necessary to constitute a quorum for the transaction of business. (D) Minutes of each meeting of the Trust Committee shall be kept and promptly submitted to the Board of Directors. (E) The Trust Committee shall have the power to appoint Committees and/or designate officers or employees of the Company to whom supervision over the investment of trust funds may be delegated when the Trust Committee is not in session. Section 3. Audit Committee (A) The Audit Committee shall be composed of five members who shall be selected by the Board of Directors from its own members, none of whom shall be an officer of the Company, and shall hold office at the pleasure of the Board. (B) The Audit Committee shall have general supervision over the Audit Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable. (C) The Audit Committee shall meet whenever and wherever the majority of its members shall deem it to be proper for the transaction of its business, and a majority of its Committee shall constitute a quorum. Section 4. Compensation Committee (A) The Compensation Committee shall be composed of not more than 4 22 five (5) members who shall be selected by the Board of Directors from its own members who are not officers of the Company and who shall hold office during the pleasure of the Board. (B) The Compensation Committee shall in general advise upon all matters of policy concerning the Company brought to its attention by the management and from time to time review the management of the Company, major organizational matters, including salaries and employee benefits and specifically shall administer the Executive Incentive Compensation Plan. (C) Meetings of the Compensation Committee may be called at any time by the Chairman of the Compensation Committee, the Chairman of the Board of Directors, or the President of the Company. Section 5. Associate Directors (A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve during the pleasure of the Board. (B) An associate director shall be entitled to attend all directors meetings and participate in the discussion of all matters brought to the Board, with the exception that he would have no right to vote. An associate director will be eligible for appointment to Committees of the Company, with the exception of the Executive Committee, Audit Committee and Compensation Committee, which must be comprised solely of active directors. Section 6. Absence or Disqualification of Any Member of a Committee (A) In the absence or disqualification of any member of any Committee created under Article III of the By-Laws of this Company, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absence or disqualified member. ARTICLE IV OFFICERS Section 1. The Chairman of the Board of Directors shall preside at all meetings of the Board and shall have such further authority and powers and shall perform such duties as the Board of Directors may from time to time confer and direct. He shall also exercise such powers and perform such duties as may from time to time be agreed upon between himself and the President of the Company. Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board of 5 23 Directors shall preside at all meetings of the Board of Directors at which the Chairman of the Board shall not be present and shall have such further authority and powers and shall perform such duties as the Board of Directors or the Chairman of the Board may from time to time confer and direct. Section 3. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute or assigned to him by the Board of Directors in the absence of the Chairman of the Board the President shall have the powers and duties of the Chairman of the Board. Section 4. The Chairman of the Board of Directors or the President as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors, and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office. Section 5. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all the duties of the Chairman of the Board of Directors and/or the President and such other powers and duties as may from time to time be assigned to them by the Board of Directors, the Executive Committee, the Chairman of the Board or the President and by the officer in charge of the department or division to which they are assigned. Section 6. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the Committees thereof, to the keeping of accurate minutes of all such meetings and to recording the same in the minute books of the Company. In addition to the other notice requirements of these By-Laws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any other meeting. He shall have custody of the corporate seal and shall affix the same to any documents requiring such corporate seal and to attest the same. Section 7. The Treasurer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all the transactions of the Company. He shall have general supervision of the expenditures of the Company and shall report to the Board of Directors at each regular meeting of the condition of the Company, and perform such other duties as may be assigned to him from time to time by the Board of Directors of the Executive Committee. Section 8. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors at appropriate times a report relating to the general condition and internal operations of the Company. 6 24 There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller. Section 9. The officer designated by the Board of Directors to be in charge of the Audit Division of the Company with such title as the Board of Directors shall prescribe, shall report to and be directly responsible only to the Board of Directors. There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Division. Section 10. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office Assistant Secretary of this Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to whom they are assigned. Section 11. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, Chairman of the Board of Directors or the President and the officer in charge of the department or division to which they are assigned. ARTICLE V STOCK AND STOCK CERTIFICATES Section 1. Shares of stock shall be transferrable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 2. Certificate of stock shall bear the signature of the President or any Vice President, however denominated by the Board of Directors and countersigned by the Secretary or Treasurer or an Assistant Secretary, and the seal of the corporation shall be engraved thereon. Each certificate shall recite that the stock represented thereby is transferrable only upon the books of the Company by the holder thereof or his attorney, upon surrender of the certificate properly endorsed. Any certificate of stock surrendered to the Company shall be cancelled at the time of transfer, and before a new certificate or certificates shall be issued in lieu thereof. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee. Section 3. The Board of Directors of the Company is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of 7 25 any dividend, or to any allotment or rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days proceeding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent. ARTICLE VI SEAL Section 1. The corporate seal of the Company shall be in the following form: Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware." ARTICLE VII FISCAL YEAR Section 1. The fiscal year of the Company shall be the calendar year. ARTICLE VIII EXECUTION OF INSTRUMENTS OF THE COMPANY Section 1. The Chairman of the Board, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as although expressly authorized by the Board of Directors and/or the Executive Committee. 8 26 ARTICLE IX COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES Section 1. Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be employed by the Company for such special services as the Board of Directors may from time to time determine and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors. ARTICLE X INDEMNIFICATION Section 1. (A) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Corporation shall indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Corporation. (B) The Corporation shall pay the expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a Director officer in his capacity as a Director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Director or officer to repay all amounts advanced if it should be ultimately determined that the Director or officer is not entitled to be indemnified under this Article or otherwise. (C) If a claim for indemnification or payment of expenses, under this Article X is not paid in full within ninety days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving 9 27 that the claimant was not entitled to the requested indemnification of payment of expenses under applicable law. (D) The rights conferred on any person by this Article X shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these By-Laws, agreement, vote of stockholders or disinterested Directors or otherwise. (E) Any repeal or modification of the foregoing provisions of this Article X shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. ARTICLE XI AMENDMENTS TO THE BY-LAWS Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, and any new By-Law or By-Laws adopted at any regular or special meeting of the Board of Directors by a vote of the majority of all the members of the Board of Directors then in office. 10 28 EXHIBIT C SECTION 321(b) CONSENT Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor. WILMINGTON TRUST COMPANY Dated: April 10, 1997 By: /s/ Emmett R. Harmon -------------------------- Name: Emmett R. Harmon Title: Vice President 29 EXHIBIT D NOTICE This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements. R E P O R T O F C O N D I T I O N Consolidating domestic subsidiaries of the WILMINGTON TRUST COMPANY of WILMINGTON - ----------------------------------------------- ------------------ Name of Bank City in the State of DELAWARE , at the close of business on December 31, 1996. ------------
ASSETS Thousands of dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . 213,895 Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465,818 Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752,297 Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,000 Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . 39,190 Loans and lease financing receivables: Loans and leases, net of unearned income. . . . . . . 3,634,003 LESS: Allowance for loan and lease losses. . . . . . 51,847 LESS: Allocated transfer risk reserve. . . . . . . . 0 Loans and leases, net of unearned income, allowance, and reserve . . . . . . 3,582,156 Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . 89,129 Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,520 Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . 52 Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . 0 Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,593 Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114,300 Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,359,950
CONTINUED ON NEXT PAGE 30 LIABILITIES Deposits: In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,749,697 Noninterest-bearing . . . . . . . . . . . . . . . . . 852,790 Interest-bearing. . . . . . . . . . . . . . . . . . . 2,896,907 Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77,825 Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . 192,295 Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . 53,526 Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /////// With original maturity of one year or less . . . . . . . . . . . . . . . . . 714,000 With original maturity of more than one year . . . . . . . . . . . . . . . . 43,000 Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . 0 Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . 0 Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,756 Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,929,099 Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . 0 EQUITY CAPITAL Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . 0 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118 Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . 367,371 Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . 862 Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430,851 Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . 5,359,950
2 EX-25.(E) 11 EX-25(E) 1 EXHIBIT 25(e) Registration No. ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___ WILMINGTON TRUST COMPANY (Exact name of trustee as specified in its charter) Delaware 51-0055023 (State of incorporation) (I.R.S. employer identification no.) Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 (Address of principal executive offices) Cynthia L. Corliss Vice President and Trust Counsel Wilmington Trust Company Rodney Square North Wilmington, Delaware 19890 (302) 651-8516 (Name, address and telephone number of agent for service) GENERAL MOTORS CORPORATION (Exact name of obligor as specified in its charter) Delaware 38-0572515 (State of incorporation) (I.R.S. employer identification no.) 100 Renaissance Center Detroit, Michigan 48243-7301 (Address of principal executive offices) (Zip Code) Guarantee of the Series G Preferred Securities by General Motors Corporation (Title of the indenture securities) ================================================================================ 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee. ITEM 3. LIST OF EXHIBITS. List below all exhibits filed as part of this Statement of Eligibility and Qualification. A. Copy of the Charter of Wilmington Trust Company, which includes the certificate of authority of Wilmington Trust Company to commence business and the authorization of Wilmington Trust Company to exercise corporate trust powers. B. Copy of By-Laws of Wilmington Trust Company. C. Consent of Wilmington Trust Company required by Section 321(b) of Trust Indenture Act. D. Copy of most recent Report of Condition of Wilmington Trust Company. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 10th day of April, 1997. WILMINGTON TRUST COMPANY [SEAL] Attest:/s/ W. Chris Sponenberg By:/s/ Emmett R. Harmon ------------------------- ---------------------------- Assistant Secretary Name: Emmett R. Harmon Title: Vice President 2 3 EXHIBIT A AMENDED CHARTER WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON MAY 9, 1987 4 AMENDED CHARTER OR ACT OF INCORPORATION OF WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows: FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY. SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority. THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.: (1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the 5 Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. (2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. (3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. (4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. (5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. (6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. (7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. 2 6 (8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. (9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. (10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. (11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual 3 7 owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. (b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers: (1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. (2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. (3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. (4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. (5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. 4 8 (6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of: (1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and (2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock"). (b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following: (1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; (2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of 5 9 stock and whether such dividends shall be cumulative or non-cumulative; (3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. (5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. (6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and (7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. (c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. (2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article FOURTH), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to 6 10 receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. (3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. (d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock. 7 11 (f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon. FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board. (b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. (c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the 8 12 Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose. (d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board. (e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee. (f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. (g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. SIXTH: - The Directors shall choose such officers, agent and servants as may be provided in the By-Laws as they may from time to time find necessary or proper. SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended. EIGHTH: - This Act shall be deemed and taken to be a private Act. 9 13 NINTH: - This Corporation is to have perpetual existence. TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever. TWELFTH: - The Corporation may transact business in any part of the world. THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class). FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them. FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article FIFTEENTH: (A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or 10 14 (C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or (D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or (E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to any one or more of clauses (A) through (E) of paragraph 1 of the section (a). (b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation of By-Laws if such business combination has been approved by a majority of the whole Board. (c) For the purposes of this Article FIFTEENTH: (1) A "person" shall mean any individual firm, corporation or other entity. (2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on 11 15 such business combination, or immediately prior to the consummation of any such transaction: (A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or (B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or (C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) A person shall be the "beneficial owner" of any Voting Shares: (A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or (B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or (C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation. (4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. (5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. 12 16 (6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect in December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,00,000 or more. (e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation. SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended. (b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification." 13 17 EXHIBIT B BY-LAWS WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON JANUARY 16, 1997 18 BY-LAWS OF WILMINGTON TRUST COMPANY ARTICLE I STOCKHOLDERS' MEETINGS Section 1. The Annual Meeting of Stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time, or place as may be designated by resolution by the Board of Directors. Section 2. Special meetings of all stockholders may be called at any time by the Board of Directors, the Chairman of the Board or the President. Section 3. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting. Section 4. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a small number of shares may adjourn, from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each shares of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein. ARTICLE II DIRECTORS Section 1. The number and classification of the Board of Directors shall be as set forth in the Charter of the Bank. Section 2. No person who has attained the age of seventy-two (72) years shall be nominated for election to the Board of Directors of the Company, provided, however, that this limitation shall not apply to any person who was serving as director of the Company on September 16, 1971. Section 3. The class of Directors so elected shall hold office for three years or until their successors are elected and qualified. Section 4. The affairs and business of the Company shall be managed and conducted by the Board of Directors. Section 5. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its 19 members, or at the call of the Chairman of the Board of Directors or the President. Section 6. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board of Directors or by the President, and shall be called upon the written request of a majority of the directors. Section 7. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors. Section 8. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting. Section 9. In the event of the death, resignation, removal, inability to act, or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified. Section 10. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, a Trust Committee, an Audit Committee and a Compensation Committee, and shall elect from its own members a Chairman of the Board of Directors and a President who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Treasurer, who may be the same person, may appoint at any time such other committees and elect or appoint such other officers as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. Section 11. The Board of Directors may at any time remove, with or without cause, any member of any Committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor. Section 12. The Board of Directors may designate an officer to be in charge of such of the departments or division of the Company as it may deem advisable. ARTICLE III COMMITTEES Section I. Executive Committee (A) The Executive Committee shall be composed of not more than nine members who shall be selected by the Board of Directors from its own members and who 2 20 shall hold office during the pleasure of the Board. (B) The Executive Committee shall have all the powers of the Board of Directors when it is not in session to transact all business for and in behalf of the Company that may be brought before it. (C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee or at the call of the Chairman of the Board of Directors. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present. (D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting. (E) The Executive Committee shall advise and superintend all investments that may be made of the funds of the Company, and shall direct the disposal of the same, in accordance with such rules and regulations as the Board of Directors from time to time make. (F) In the event of a state of disaster of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these By-Laws any two available members of the Executive Committee as constituted immediately prior to such disaster shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article III of these By-Laws; and if less than three members of the Trust Committee is constituted immediately prior to such disaster shall be available for the transaction of its business, such Executive Committee shall also be empowered to exercise all of the powers reserved to the Trust Committee under Article III Section 2 hereof. In the event of the unavailability, at such time, of a minimum of two members of such Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This By-Law shall be subject to implementation by Resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these By-Laws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementary Resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these By-Laws. 3 21 Section 2. Trust Committee (A) The Trust Committee shall be composed of not more than thirteen members who shall be selected by the Board of Directors, a majority of whom shall be members of the Board of Directors and who shall hold office during the pleasure of the Board. (B) The Trust Committee shall have general supervision over the Trust Department and the investment of trust funds, in all matters, however, being subject to the approval of the Board of Directors. (C) The Trust Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members or at the call of its chairman. A majority of its members shall be necessary to constitute a quorum for the transaction of business. (D) Minutes of each meeting of the Trust Committee shall be kept and promptly submitted to the Board of Directors. (E) The Trust Committee shall have the power to appoint Committees and/or designate officers or employees of the Company to whom supervision over the investment of trust funds may be delegated when the Trust Committee is not in session. Section 3. Audit Committee (A) The Audit Committee shall be composed of five members who shall be selected by the Board of Directors from its own members, none of whom shall be an officer of the Company, and shall hold office at the pleasure of the Board. (B) The Audit Committee shall have general supervision over the Audit Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable. (C) The Audit Committee shall meet whenever and wherever the majority of its members shall deem it to be proper for the transaction of its business, and a majority of its Committee shall constitute a quorum. Section 4. Compensation Committee (A) The Compensation Committee shall be composed of not more than 4 22 five (5) members who shall be selected by the Board of Directors from its own members who are not officers of the Company and who shall hold office during the pleasure of the Board. (B) The Compensation Committee shall in general advise upon all matters of policy concerning the Company brought to its attention by the management and from time to time review the management of the Company, major organizational matters, including salaries and employee benefits and specifically shall administer the Executive Incentive Compensation Plan. (C) Meetings of the Compensation Committee may be called at any time by the Chairman of the Compensation Committee, the Chairman of the Board of Directors, or the President of the Company. Section 5. Associate Directors (A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve during the pleasure of the Board. (B) An associate director shall be entitled to attend all directors meetings and participate in the discussion of all matters brought to the Board, with the exception that he would have no right to vote. An associate director will be eligible for appointment to Committees of the Company, with the exception of the Executive Committee, Audit Committee and Compensation Committee, which must be comprised solely of active directors. Section 6. Absence or Disqualification of Any Member of a Committee (A) In the absence or disqualification of any member of any Committee created under Article III of the By-Laws of this Company, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absence or disqualified member. ARTICLE IV OFFICERS Section 1. The Chairman of the Board of Directors shall preside at all meetings of the Board and shall have such further authority and powers and shall perform such duties as the Board of Directors may from time to time confer and direct. He shall also exercise such powers and perform such duties as may from time to time be agreed upon between himself and the President of the Company. Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board of 5 23 Directors shall preside at all meetings of the Board of Directors at which the Chairman of the Board shall not be present and shall have such further authority and powers and shall perform such duties as the Board of Directors or the Chairman of the Board may from time to time confer and direct. Section 3. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute or assigned to him by the Board of Directors in the absence of the Chairman of the Board the President shall have the powers and duties of the Chairman of the Board. Section 4. The Chairman of the Board of Directors or the President as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors, and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office. Section 5. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all the duties of the Chairman of the Board of Directors and/or the President and such other powers and duties as may from time to time be assigned to them by the Board of Directors, the Executive Committee, the Chairman of the Board or the President and by the officer in charge of the department or division to which they are assigned. Section 6. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the Committees thereof, to the keeping of accurate minutes of all such meetings and to recording the same in the minute books of the Company. In addition to the other notice requirements of these By-Laws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any other meeting. He shall have custody of the corporate seal and shall affix the same to any documents requiring such corporate seal and to attest the same. Section 7. The Treasurer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all the transactions of the Company. He shall have general supervision of the expenditures of the Company and shall report to the Board of Directors at each regular meeting of the condition of the Company, and perform such other duties as may be assigned to him from time to time by the Board of Directors of the Executive Committee. Section 8. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors at appropriate times a report relating to the general condition and internal operations of the Company. 6 24 There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller. Section 9. The officer designated by the Board of Directors to be in charge of the Audit Division of the Company with such title as the Board of Directors shall prescribe, shall report to and be directly responsible only to the Board of Directors. There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Division. Section 10. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office Assistant Secretary of this Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to whom they are assigned. Section 11. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, Chairman of the Board of Directors or the President and the officer in charge of the department or division to which they are assigned. ARTICLE V STOCK AND STOCK CERTIFICATES Section 1. Shares of stock shall be transferrable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 2. Certificate of stock shall bear the signature of the President or any Vice President, however denominated by the Board of Directors and countersigned by the Secretary or Treasurer or an Assistant Secretary, and the seal of the corporation shall be engraved thereon. Each certificate shall recite that the stock represented thereby is transferrable only upon the books of the Company by the holder thereof or his attorney, upon surrender of the certificate properly endorsed. Any certificate of stock surrendered to the Company shall be cancelled at the time of transfer, and before a new certificate or certificates shall be issued in lieu thereof. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee. Section 3. The Board of Directors of the Company is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of 7 25 any dividend, or to any allotment or rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days proceeding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent. ARTICLE VI SEAL Section 1. The corporate seal of the Company shall be in the following form: Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware." ARTICLE VII FISCAL YEAR Section 1. The fiscal year of the Company shall be the calendar year. ARTICLE VIII EXECUTION OF INSTRUMENTS OF THE COMPANY Section 1. The Chairman of the Board, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as although expressly authorized by the Board of Directors and/or the Executive Committee. 8 26 ARTICLE IX COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES Section 1. Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be employed by the Company for such special services as the Board of Directors may from time to time determine and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors. ARTICLE X INDEMNIFICATION Section 1. (A) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Corporation shall indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Corporation. (B) The Corporation shall pay the expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a Director officer in his capacity as a Director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Director or officer to repay all amounts advanced if it should be ultimately determined that the Director or officer is not entitled to be indemnified under this Article or otherwise. (C) If a claim for indemnification or payment of expenses, under this Article X is not paid in full within ninety days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving 9 27 that the claimant was not entitled to the requested indemnification of payment of expenses under applicable law. (D) The rights conferred on any person by this Article X shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these By-Laws, agreement, vote of stockholders or disinterested Directors or otherwise. (E) Any repeal or modification of the foregoing provisions of this Article X shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. ARTICLE XI AMENDMENTS TO THE BY-LAWS Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, and any new By-Law or By-Laws adopted at any regular or special meeting of the Board of Directors by a vote of the majority of all the members of the Board of Directors then in office. 10 28 EXHIBIT C SECTION 321(b) CONSENT Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor. WILMINGTON TRUST COMPANY Dated: April 10, 1997 By: /s/ Emmett R. Harmon --------------------------- Name: Emmett R. Harmon Title: Vice President 29 EXHIBIT D NOTICE This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements. R E P O R T O F C O N D I T I O N Consolidating domestic subsidiaries of the WILMINGTON TRUST COMPANY of WILMINGTON - ----------------------------------------------- ------------------ Name of Bank City in the State of DELAWARE , at the close of business on December 31, 1996. ------------
ASSETS Thousands of dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . 213,895 Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465,818 Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752,297 Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,000 Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . 39,190 Loans and lease financing receivables: Loans and leases, net of unearned income. . . . . . . 3,634,003 LESS: Allowance for loan and lease losses. . . . . . 51,847 LESS: Allocated transfer risk reserve. . . . . . . . 0 Loans and leases, net of unearned income, allowance, and reserve . . . . . . 3,582,156 Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . 89,129 Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,520 Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . 52 Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . 0 Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,593 Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114,300 Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,359,950
CONTINUED ON NEXT PAGE 30 LIABILITIES Deposits: In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,749,697 Noninterest-bearing . . . . . . . . . . . . . . . . . 852,790 Interest-bearing. . . . . . . . . . . . . . . . . . . 2,896,907 Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77,825 Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . 192,295 Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . 53,526 Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /////// With original maturity of one year or less . . . . . . . . . . . . . . . . . 714,000 With original maturity of more than one year . . . . . . . . . . . . . . . . 43,000 Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . 0 Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . 0 Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,756 Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,929,099 Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . 0 EQUITY CAPITAL Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . 0 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118 Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . 367,371 Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . 862 Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430,851 Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . 5,359,950
2 EX-25.(F) 12 EX-25(F) 1 EXHIBIT 25(f) Registration No. ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___ WILMINGTON TRUST COMPANY (Exact name of trustee as specified in its charter) Delaware 51-0055023 (State of incorporation) (I.R.S. employer identification no.) Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 (Address of principal executive offices) Cynthia L. Corliss Vice President and Trust Counsel Wilmington Trust Company Rodney Square North Wilmington, Delaware 19890 (302) 651-8516 (Name, address and telephone number of agent for service) GENERAL MOTORS CORPORATION GENERAL MOTORS CAPITAL TRUST G (Exact name of obligor as specified in its charter) Delaware 38-0572515 Delaware [Pending] (State of incorporation) (I.R.S. employer identification no.) 100 Renaissance Center Detroit, Michigan 48243-7301 (Address of principal executive offices) (Zip Code) ___% Trust Originated Preferred Securities(SM) (TOPrS)(SM), Series G, of General Motors Capital Trust (Title of the indenture securities) ================================================================================ 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Federal Deposit Insurance Co. State Bank Commissioner Five Penn Center Dover, Delaware Suite #2901 Philadelphia, PA (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee. ITEM 3. LIST OF EXHIBITS. List below all exhibits filed as part of this Statement of Eligibility and Qualification. A. Copy of the Charter of Wilmington Trust Company, which includes the certificate of authority of Wilmington Trust Company to commence business and the authorization of Wilmington Trust Company to exercise corporate trust powers. B. Copy of By-Laws of Wilmington Trust Company. C. Consent of Wilmington Trust Company required by Section 321(b) of Trust Indenture Act. D. Copy of most recent Report of Condition of Wilmington Trust Company. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 10th day of April, 1997. WILMINGTON TRUST COMPANY [SEAL] Attest:/s/ W. Chris Sponenberg By:/s/ Emmett R. Harmon --------------------------- --------------------------- Assistant Secretary Name: Emmett R. Harmon Title: Vice President 2 3 EXHIBIT A AMENDED CHARTER WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON MAY 9, 1987 4 AMENDED CHARTER OR ACT OF INCORPORATION OF WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows: FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY. SECOND: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority. THIRD: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.: (1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the 5 Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created. (2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere. (3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business. (4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches. (5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property. (6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality. (7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations. 2 6 (8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere. (9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons, corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment. (10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation. (11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual 3 7 owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein. (b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers: (1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world. (2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business. (3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated. (4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments. (5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place. 4 8 (6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers. FOURTH: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of: (1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as "Preferred Stock"); and (2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as "Common Stock"). (b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following: (1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors; (2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of 5 9 stock and whether such dividends shall be cumulative or non-cumulative; (3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed. (5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation. (6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and (7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine. (c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article FOURTH), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article FOURTH), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article FOURTH, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors. (2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article FOURTH), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to 6 10 receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively. (3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article FOURTH, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders. (d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article FOURTH and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article FOURTH that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock. 7 11 (f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon. FIFTH: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board. (b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director. (c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the 8 12 Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose. (d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days' notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board. (e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee. (f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. (g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. SIXTH: - The Directors shall choose such officers, agent and servants as may be provided in the By-Laws as they may from time to time find necessary or proper. SEVENTH: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled "An Act Providing a General Corporation Law", approved March 10, 1899, as from time to time amended. EIGHTH: - This Act shall be deemed and taken to be a private Act. 9 13 NINTH: - This Corporation is to have perpetual existence. TENTH: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. ELEVENTH: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever. TWELFTH: - The Corporation may transact business in any part of the world. THIRTEENTH: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class). FOURTEENTH: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the books of the Company outside of the State of Delaware at such places as may be from time to time designated by them. FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article FIFTEENTH: (A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or 10 14 (C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or (D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or (E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise. (2) The term "business combination" as used in this Article FIFTEENTH shall mean any transaction which is referred to any one or more of clauses (A) through (E) of paragraph 1 of the section (a). (b) The provisions of section (a) of this Article FIFTEENTH shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation of By-Laws if such business combination has been approved by a majority of the whole Board. (c) For the purposes of this Article FIFTEENTH: (1) A "person" shall mean any individual firm, corporation or other entity. (2) "Interested Stockholder" shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on 11 15 such business combination, or immediately prior to the consummation of any such transaction: (A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or (B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or (C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. (3) A person shall be the "beneficial owner" of any Voting Shares: (A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or (B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or (C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation. (4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise. (5) "Affiliate" and "Associate" shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981. 12 16 (6) "Subsidiary" shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect in December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. (d) majority of the directors shall have the power and duty to determine for the purposes of this Article FIFTEENTH on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,00,000 or more. (e) Nothing contained in this Article FIFTEENTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. SIXTEENTH: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation. SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended. (b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification." 13 17 EXHIBIT B BY-LAWS WILMINGTON TRUST COMPANY WILMINGTON, DELAWARE AS EXISTING ON JANUARY 16, 1997 18 BY-LAWS OF WILMINGTON TRUST COMPANY ARTICLE I STOCKHOLDERS' MEETINGS Section 1. The Annual Meeting of Stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time, or place as may be designated by resolution by the Board of Directors. Section 2. Special meetings of all stockholders may be called at any time by the Board of Directors, the Chairman of the Board or the President. Section 3. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting. Section 4. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a small number of shares may adjourn, from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each shares of stock registered in the stockholder's name on the books of the Company on the record date for any such meeting as determined herein. ARTICLE II DIRECTORS Section 1. The number and classification of the Board of Directors shall be as set forth in the Charter of the Bank. Section 2. No person who has attained the age of seventy-two (72) years shall be nominated for election to the Board of Directors of the Company, provided, however, that this limitation shall not apply to any person who was serving as director of the Company on September 16, 1971. Section 3. The class of Directors so elected shall hold office for three years or until their successors are elected and qualified. Section 4. The affairs and business of the Company shall be managed and conducted by the Board of Directors. Section 5. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its 19 members, or at the call of the Chairman of the Board of Directors or the President. Section 6. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board of Directors or by the President, and shall be called upon the written request of a majority of the directors. Section 7. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors. Section 8. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting. Section 9. In the event of the death, resignation, removal, inability to act, or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director's successor shall have been duly elected and qualified. Section 10. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Executive Committee, a Trust Committee, an Audit Committee and a Compensation Committee, and shall elect from its own members a Chairman of the Board of Directors and a President who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Treasurer, who may be the same person, may appoint at any time such other committees and elect or appoint such other officers as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. Section 11. The Board of Directors may at any time remove, with or without cause, any member of any Committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor. Section 12. The Board of Directors may designate an officer to be in charge of such of the departments or division of the Company as it may deem advisable. ARTICLE III COMMITTEES Section I. Executive Committee (A) The Executive Committee shall be composed of not more than nine members who shall be selected by the Board of Directors from its own members and who 2 20 shall hold office during the pleasure of the Board. (B) The Executive Committee shall have all the powers of the Board of Directors when it is not in session to transact all business for and in behalf of the Company that may be brought before it. (C) The Executive Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Executive Committee or at the call of the Chairman of the Board of Directors. The majority of its members shall be necessary to constitute a quorum for the transaction of business. Special meetings of the Executive Committee may be held at any time when a quorum is present. (D) Minutes of each meeting of the Executive Committee shall be kept and submitted to the Board of Directors at its next meeting. (E) The Executive Committee shall advise and superintend all investments that may be made of the funds of the Company, and shall direct the disposal of the same, in accordance with such rules and regulations as the Board of Directors from time to time make. (F) In the event of a state of disaster of sufficient severity to prevent the conduct and management of the affairs and business of the Company by its directors and officers as contemplated by these By-Laws any two available members of the Executive Committee as constituted immediately prior to such disaster shall constitute a quorum of that Committee for the full conduct and management of the affairs and business of the Company in accordance with the provisions of Article III of these By-Laws; and if less than three members of the Trust Committee is constituted immediately prior to such disaster shall be available for the transaction of its business, such Executive Committee shall also be empowered to exercise all of the powers reserved to the Trust Committee under Article III Section 2 hereof. In the event of the unavailability, at such time, of a minimum of two members of such Executive Committee, any three available directors shall constitute the Executive Committee for the full conduct and management of the affairs and business of the Company in accordance with the foregoing provisions of this Section. This By-Law shall be subject to implementation by Resolutions of the Board of Directors presently existing or hereafter passed from time to time for that purpose, and any provisions of these By-Laws (other than this Section) and any resolutions which are contrary to the provisions of this Section or to the provisions of any such implementary Resolutions shall be suspended during such a disaster period until it shall be determined by any interim Executive Committee acting under this section that it shall be to the advantage of the Company to resume the conduct and management of its affairs and business under all of the other provisions of these By-Laws. 3 21 Section 2. Trust Committee (A) The Trust Committee shall be composed of not more than thirteen members who shall be selected by the Board of Directors, a majority of whom shall be members of the Board of Directors and who shall hold office during the pleasure of the Board. (B) The Trust Committee shall have general supervision over the Trust Department and the investment of trust funds, in all matters, however, being subject to the approval of the Board of Directors. (C) The Trust Committee shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members or at the call of its chairman. A majority of its members shall be necessary to constitute a quorum for the transaction of business. (D) Minutes of each meeting of the Trust Committee shall be kept and promptly submitted to the Board of Directors. (E) The Trust Committee shall have the power to appoint Committees and/or designate officers or employees of the Company to whom supervision over the investment of trust funds may be delegated when the Trust Committee is not in session. Section 3. Audit Committee (A) The Audit Committee shall be composed of five members who shall be selected by the Board of Directors from its own members, none of whom shall be an officer of the Company, and shall hold office at the pleasure of the Board. (B) The Audit Committee shall have general supervision over the Audit Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable. (C) The Audit Committee shall meet whenever and wherever the majority of its members shall deem it to be proper for the transaction of its business, and a majority of its Committee shall constitute a quorum. Section 4. Compensation Committee (A) The Compensation Committee shall be composed of not more than 4 22 five (5) members who shall be selected by the Board of Directors from its own members who are not officers of the Company and who shall hold office during the pleasure of the Board. (B) The Compensation Committee shall in general advise upon all matters of policy concerning the Company brought to its attention by the management and from time to time review the management of the Company, major organizational matters, including salaries and employee benefits and specifically shall administer the Executive Incentive Compensation Plan. (C) Meetings of the Compensation Committee may be called at any time by the Chairman of the Compensation Committee, the Chairman of the Board of Directors, or the President of the Company. Section 5. Associate Directors (A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve during the pleasure of the Board. (B) An associate director shall be entitled to attend all directors meetings and participate in the discussion of all matters brought to the Board, with the exception that he would have no right to vote. An associate director will be eligible for appointment to Committees of the Company, with the exception of the Executive Committee, Audit Committee and Compensation Committee, which must be comprised solely of active directors. Section 6. Absence or Disqualification of Any Member of a Committee (A) In the absence or disqualification of any member of any Committee created under Article III of the By-Laws of this Company, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absence or disqualified member. ARTICLE IV OFFICERS Section 1. The Chairman of the Board of Directors shall preside at all meetings of the Board and shall have such further authority and powers and shall perform such duties as the Board of Directors may from time to time confer and direct. He shall also exercise such powers and perform such duties as may from time to time be agreed upon between himself and the President of the Company. Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board of 5 23 Directors shall preside at all meetings of the Board of Directors at which the Chairman of the Board shall not be present and shall have such further authority and powers and shall perform such duties as the Board of Directors or the Chairman of the Board may from time to time confer and direct. Section 3. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute or assigned to him by the Board of Directors in the absence of the Chairman of the Board the President shall have the powers and duties of the Chairman of the Board. Section 4. The Chairman of the Board of Directors or the President as designated by the Board of Directors, shall carry into effect all legal directions of the Executive Committee and of the Board of Directors, and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office. Section 5. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all the duties of the Chairman of the Board of Directors and/or the President and such other powers and duties as may from time to time be assigned to them by the Board of Directors, the Executive Committee, the Chairman of the Board or the President and by the officer in charge of the department or division to which they are assigned. Section 6. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the Committees thereof, to the keeping of accurate minutes of all such meetings and to recording the same in the minute books of the Company. In addition to the other notice requirements of these By-Laws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any other meeting. He shall have custody of the corporate seal and shall affix the same to any documents requiring such corporate seal and to attest the same. Section 7. The Treasurer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all the transactions of the Company. He shall have general supervision of the expenditures of the Company and shall report to the Board of Directors at each regular meeting of the condition of the Company, and perform such other duties as may be assigned to him from time to time by the Board of Directors of the Executive Committee. Section 8. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors at appropriate times a report relating to the general condition and internal operations of the Company. 6 24 There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller. Section 9. The officer designated by the Board of Directors to be in charge of the Audit Division of the Company with such title as the Board of Directors shall prescribe, shall report to and be directly responsible only to the Board of Directors. There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Division. Section 10. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office Assistant Secretary of this Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to whom they are assigned. Section 11. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Executive Committee, Chairman of the Board of Directors or the President and the officer in charge of the department or division to which they are assigned. ARTICLE V STOCK AND STOCK CERTIFICATES Section 1. Shares of stock shall be transferrable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 2. Certificate of stock shall bear the signature of the President or any Vice President, however denominated by the Board of Directors and countersigned by the Secretary or Treasurer or an Assistant Secretary, and the seal of the corporation shall be engraved thereon. Each certificate shall recite that the stock represented thereby is transferrable only upon the books of the Company by the holder thereof or his attorney, upon surrender of the certificate properly endorsed. Any certificate of stock surrendered to the Company shall be cancelled at the time of transfer, and before a new certificate or certificates shall be issued in lieu thereof. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors or the Executive Committee. Section 3. The Board of Directors of the Company is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of 7 25 any dividend, or to any allotment or rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days proceeding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent. ARTICLE VI SEAL Section 1. The corporate seal of the Company shall be in the following form: Between two concentric circles the words "Wilmington Trust Company" within the inner circle the words "Wilmington, Delaware." ARTICLE VII FISCAL YEAR Section 1. The fiscal year of the Company shall be the calendar year. ARTICLE VIII EXECUTION OF INSTRUMENTS OF THE COMPANY Section 1. The Chairman of the Board, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors or the Executive Committee, and any and all such instruments shall have the same force and validity as although expressly authorized by the Board of Directors and/or the Executive Committee. 8 26 ARTICLE IX COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES Section 1. Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be employed by the Company for such special services as the Board of Directors may from time to time determine and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors. ARTICLE X INDEMNIFICATION Section 1. (A) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding") by reason of the fact that he, or a person for whom he is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Corporation shall indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Corporation. (B) The Corporation shall pay the expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a Director officer in his capacity as a Director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Director or officer to repay all amounts advanced if it should be ultimately determined that the Director or officer is not entitled to be indemnified under this Article or otherwise. (C) If a claim for indemnification or payment of expenses, under this Article X is not paid in full within ninety days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving 9 27 that the claimant was not entitled to the requested indemnification of payment of expenses under applicable law. (D) The rights conferred on any person by this Article X shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these By-Laws, agreement, vote of stockholders or disinterested Directors or otherwise. (E) Any repeal or modification of the foregoing provisions of this Article X shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. ARTICLE XI AMENDMENTS TO THE BY-LAWS Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, and any new By-Law or By-Laws adopted at any regular or special meeting of the Board of Directors by a vote of the majority of all the members of the Board of Directors then in office. 10 28 EXHIBIT C SECTION 321(b) CONSENT Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor. WILMINGTON TRUST COMPANY Dated: April 10, 1997 By: /s/ Emmett R. Harmon ----------------------------- Name: Emmett R. Harmon Title: Vice President 29 EXHIBIT D NOTICE This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements. R E P O R T O F C O N D I T I O N Consolidating domestic subsidiaries of the WILMINGTON TRUST COMPANY of WILMINGTON - ----------------------------------------------- ------------------ Name of Bank City in the State of DELAWARE , at the close of business on December 31, 1996. ------------
ASSETS Thousands of dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . 213,895 Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465,818 Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752,297 Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,000 Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . 39,190 Loans and lease financing receivables: Loans and leases, net of unearned income. . . . . . . 3,634,003 LESS: Allowance for loan and lease losses. . . . . . 51,847 LESS: Allocated transfer risk reserve. . . . . . . . 0 Loans and leases, net of unearned income, allowance, and reserve . . . . . . 3,582,156 Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . 89,129 Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,520 Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . 52 Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . 0 Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,593 Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114,300 Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,359,950
CONTINUED ON NEXT PAGE 30 LIABILITIES Deposits: In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,749,697 Noninterest-bearing . . . . . . . . . . . . . . . . . 852,790 Interest-bearing. . . . . . . . . . . . . . . . . . . 2,896,907 Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77,825 Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . . 192,295 Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . 53,526 Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . /////// With original maturity of one year or less . . . . . . . . . . . . . . . . . 714,000 With original maturity of more than one year . . . . . . . . . . . . . . . . 43,000 Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . 0 Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . 0 Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98,756 Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,929,099 Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . 0 EQUITY CAPITAL Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . 0 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500 Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118 Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . 367,371 Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . 862 Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430,851 Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . 5,359,950
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