Exhibit 1.1
EXECUTION VERSION
$3,000,000,000
GENERAL MOTORS
COMPANY
Floating Rate Senior Notes due 2020
4.200% Senior Notes due 2027
5.150% Senior Notes due 2038
5.400% Senior Notes due 2048
Underwriting Agreement
August 2, 2017
DEUTSCHE BANK SECURITIES
INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. LLC
As
Representatives of the several Underwriters
named in Schedule I hereto
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY
10005
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York,
New York 10016
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York
10036
Ladies and Gentlemen:
I.
General Motors Company, a Delaware corporation (the “
Company
”), proposes to issue and sell to the several underwriters named
in Schedule I hereto (collectively, the “
Underwriters
”), for whom Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC are acting as representatives (the
“
Representatives
”), $500,000,000 aggregate principal amount of its Floating Rate Senior Notes
due 2020 (the “
Floating Rate Notes
”), $750,000,000 aggregate principal amount of its 4.200% Senior Notes due 2027 (the “
2027 Notes
”), $1,000,000,000 aggregate
principal amount of its 5.150% Senior Notes due 2038 (the “
2038 Notes
”) and $750,000,000 aggregate principal amount of its 5.400% Senior Notes due 2048 (the “
2048 Notes
” and, together with the Floating Rate Notes,
the 2027 Notes and the 2038 Notes, the “
Securities
”) all to be issued pursuant to the provisions of an Indenture dated as of September 27, 2013 (as defined below) (the “
Base
Indenture
”) between the
Company and The Bank of New York Mellon, as Trustee (the “
Trustee
”), as supplemented by a supplemental indenture to be dated as of the Closing Date (the “
Fourth Supplemental Indenture
” and, together with the Base
Indenture, the “
Indenture
”) between the Company and the Trustee.
The Company has filed with the Securities and Exchange
Commission (the “
Commission
”) a registration statement, including a prospectus (File
No. 333-215924),
on Form
S-3
relating to certain securities of
the Company (the “
Shelf Securities
”), including the Securities, to be sold from time to time by the Company. The registration statement as amended to the date of this Agreement, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (together with the rules and regulations of the Commission promulgated thereunder, the “
Securities
Act
”), is hereinafter referred to as the “
Registration Statement,
” and the related prospectus covering the Shelf Securities dated February 7, 2017 in the form first used to confirm sales of the Securities (or in the
form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “
Basic Prospectus
.” The Basic Prospectus, as supplemented
by the prospectus supplement specifically relating to the Securities in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule
173 under the Securities Act) is hereinafter referred to as the “
Prospectus
,” and the term “
Preliminary Prospectus
” means any preliminary form of the Prospectus (including any preliminary prospectus supplement and
the Basic Prospectus attached thereto) filed with the Commission pursuant to Rule 424(b) under the Securities Act.
The term
“
Permitted
Free
Writing
Prospectus
” as used herein means the documents identified in Schedule II hereto and any other “
free writing prospectus
” (as defined in Rule 405 under the Securities Act)
that the Representatives and the Company shall hereafter agree in writing to treat as part of the Disclosure Package. The term “
Disclosure
Package
” as used herein means the Preliminary Prospectus dated August 2, 2017
together with the term sheet set forth in Annex
II-A
hereto and any other Permitted Free Writing Prospectuses. “
Initial
Sale
Time
” shall mean 5:55 P.M. Eastern Standard Time on
the date of this Agreement. As used herein, the terms “Registration Statement,” “Basic Prospectus,” “Preliminary Prospectus,” “Disclosure Package” and “Prospectus” shall include the documents, if
any, incorporated by reference therein as of the date hereof. The terms “
supplement
,” “
amendment
” and “
amend
” as used herein with respect to the Registration Statement, the Basic Prospectus, the
Preliminary Prospectus, the Disclosure Package or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”),
that are deemed to be incorporated by reference therein.
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II.
The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth in Schedule I hereto opposite its name at a purchase price of
99.750% of the principal amount thereof in the case of the Floating Rate Notes, 99.402% of the principal amount thereof in the case of the 2027 Notes, 99.287% of the principal amount thereof in the case of the 2038 Notes and 99.052% of the principal
amount thereof in the case of the 2048 Notes (in respect of each series of Notes, the “
Purchase Price
”) plus accrued interest, if any, from August 7, 2017 to the Closing Date.
III.
The Company is advised by
the Representatives that the Underwriters propose to make a public offering of their respective portions of the Securities as soon as practicable after this Agreement is entered into as in the Representatives’ judgment is advisable upon the
terms and conditions set forth in this Agreement and the Disclosure Package and to be set forth in the Prospectus.
IV.
The Company will deliver the Securities, against payment of the Purchase Price therefor plus accrued interest, if any, from August 7,
2017 to the Closing Date (as defined below), in the form of one or more permanent global securities (the “
Global Securities
”) deposited with the Trustee as custodian for The Depository Trust Company (“
DTC
”) and
registered in the name of Cede & Co. as nominee for DTC. Interests in any permanent Global Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the Registration Statement, the
Disclosure Package and the Prospectus. Payment for the Securities shall be made by the several Underwriters through the Representatives by wire transfer in immediately available funds to an account specified by the Company at 10:00 A.M. (New York
time) on August 7, 2017, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Article XV (such date and time of delivery and payment for the Securities being herein called the
“
Closing Date
”), against delivery to the Trustee as custodian for DTC of the Global Securities representing all of the Securities.
V.
The several obligations of
the Underwriters hereunder are subject to the following conditions:
(a) (i) No stop order suspending the
effectiveness of the Registration Statement in the United States shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission; (ii) there shall have been no material adverse change (not in the
ordinary course of business) or any material development involving a prospective material adverse change (not in the ordinary course of business) in the financial condition of the Company and its subsidiaries, taken as a whole, in each case, from
that set forth in the
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Registration Statement, the Disclosure Package and the Prospectus; (iii) the representations and warranties of the Company in this Agreement that are subject to any limitation as to
“materiality” or “material adverse effect” shall be true and correct in all respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the representations and warranties of the Company in this
Agreement that are not subject to any limitation as to “materiality” or “material adverse effect” shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing
Date; and (iv) the Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer, including without limitation the Treasurer or Assistant Treasurer of the Company (acting on
behalf of the Company and without personal liability), to the foregoing effect. The officer making such certificate may rely upon the best of his knowledge as to proceedings threatened or prospective changes.
(b) If the Company has rated debt outstanding, subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the
rating accorded any of the debt securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act. For the avoidance of doubt, any undrawn balance
under the Second Amended and Restated
3-Year
Revolving Credit Agreement, dated as of May 26, 2016, among the Company, General Motors Financial Company, Inc., GM Europe Treasury Company AB, General Motors
do Brasil Ltda., the other subsidiary borrowers from time to time parties thereto, the several lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and Citibank, N.A., as syndication agent and the Second
Amended and Restated
5-Year
Revolving Credit Agreement, dated as of May 26, 2016, among the Company, General Motors Financial Company, Inc., General Motors do Brasil Ltda., the other subsidiary borrowers
from time to time parties thereto, the several lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and Citibank, N.A., as syndication agent, shall not be considered outstanding debt for purposes of this
clause (b).
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal or state governmental or regulatory authority that would, as of the Closing Date, prevent the sale of the Securities by the Company in the United States; and no injunction or order of any federal or state court shall
have been issued that would, as of the Closing Date, prevent the sale of the Securities by the Company in the United States.
(d) The Representatives shall have received on the Closing Date (i) an opinion of an attorney on the Legal Staff
of the Company, dated the Closing Date, to the effect set forth in Exhibit
A-1,
and (ii) a Rule
10b-5
statement of an attorney on the Legal Staff of the Company,
dated the Closing Date, to the effect set forth in Exhibit
A-2.
(e) The
Representatives shall have received on the Closing Date (i) an opinion of counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit
A-3,
and (ii) a Rule
10b-5
statement of counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit
A-4.
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(f) The Representatives shall have received on the Closing Date
(i) an opinion of counsel for the Underwriters, dated the Closing Date, to the effect set forth in Exhibit
B-1,
and (ii) a Rule
10b-5
statement of counsel for
the Underwriters, dated the Closing Date, to the effect set forth in Exhibit
B-2.
(g) The Representatives shall have received on each of the date hereof and the Closing Date customary “comfort
letters,” dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, from Deloitte & Touche LLP.
(h) The Representatives shall have received on the Closing Date (i) duly executed copies of the Indenture and
(ii) specimen copies of the global notes representing the Securities.
VI.
In further consideration of the agreements of the Underwriters contained in this Agreement, the Company covenants as follows:
(a) To furnish the Representatives, upon written request, without charge, a copy of the Disclosure Package and the
Registration Statement, including exhibits and materials, if any, incorporated by reference therein and, during the period beginning with the Initial Sale Time (and, in the case of the Prospectus, prior to 10:00 A.M. New York City time on the
business day next succeeding the date of this Agreement) and ending on the later of the Closing Date, or such date as the Prospectus is no longer required by the Securities Act to be delivered in connection with the initial offering or sale of the
Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “
Prospectus Delivery Period
”), as many copies of the Disclosure Package, the Prospectus, any Permitted Free Writing
Prospectuses, any documents incorporated by reference therein and any supplements and amendments thereto, as applicable, in all cases as the Representatives may reasonably request.
(b) During the Prospectus Delivery Period, (x) before amending or supplementing the Registration Statement, the
Disclosure Package or the Prospectus (including by way of filing with the Commission any documents incorporated by reference therein), to furnish the Representatives a copy of each such proposed amendment or supplement, and (y) to notify the
Representatives as promptly as practicable of the filing with the Commission of any such amendment or supplement to the Registration Statement, the Disclosure Package or the Prospectus.
(c) To furnish to the Representatives, upon written request, copies of each amendment and supplement to the
Registration Statement, the Disclosure Package or the Prospectus (including by way of filing with the Commission any documents incorporated by reference therein), in such quantities as the Representatives may from time to time reasonably request;
and if, during the Prospectus Delivery Period, either (i) any event shall have occurred as a result of which the Registration Statement, the Disclosure Package or the Prospectus, in each case as then so amended or supplemented would, as
determined by the Company, include any untrue statement of a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they
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were made, not misleading, or (ii) for any other reason, as determined by the Company, it shall be necessary to amend or supplement the Registration Statement, the Disclosure Package or the
Prospectus, in each case as then so amended or supplemented, or to file under the Exchange Act any document incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus, as the case may be, in order to comply
with the Securities Act or the Exchange Act, the Company will (A) notify the Underwriters to suspend offers and sales of the Securities and if notified by the Company, the Underwriters shall forthwith suspend such solicitation and cease using
the Registration Statement, the Disclosure Package or the Prospectus, as the case may be and in each case as then amended or supplemented, and (B) promptly prepare and file with the Commission such document incorporated by reference in the
Registration Statement, the Disclosure Package or the Prospectus, as the case may be, or promptly prepare an amendment or supplement to such Registration Statement, Disclosure Package or Prospectus, as applicable, which will correct such statement
or omission or effect such compliance, and will provide to the Underwriters without charge a reasonable number of copies thereof as requested by the Underwriters, which the Underwriters shall use thereafter.
(d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf
of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(e) To use its reasonable best efforts to cooperate with the Underwriters and their counsel in connection with the
qualification or registration of the Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives may reasonably request and to maintain such qualification in effect for as long as may
be necessary to complete the sale of the Securities pursuant to this Agreement;
provided
,
however
, that in connection therewith the Company shall not be required to qualify as a foreign corporation to do business, or to file a general
consent to service of process, in any jurisdiction, or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f) The Company will as promptly as practicable notify the Representatives of the issuance by the Commission of any
order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Disclosure Package or the Prospectus or having the effect of ceasing or suspending trading in the
Securities or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act or the receipt by the Company of any notice with respect to any suspension of the qualification or distribution of
the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of
the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Disclosure Package or the Prospectus or suspending any such qualification or distribution of the Securities, or having the effect of ceasing or
suspending trading in the Securities, and, if any such order is issued, will use its reasonable best efforts as soon as practicable to obtain the withdrawal thereof.
(g) The Company, during the Prospectus Delivery Period, will file timely (giving effect to any grace periods or
extensions available under applicable Commission regulations) all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
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(h) Without the prior written consent of the Representatives on behalf of
the Underwriters, the Company will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase
debt securities of the Company substantially similar to the Securities (other than the sale of the Securities under this Agreement).
(i) The Company will (i) in respect of the Securities, promptly within the time periods specified therein, effect
the filings required of it pursuant to Rule 424 and/or Rule 433 under the Securities Act, and (ii) take such steps as it deems necessary to ascertain promptly whether any Permitted Free Writing Prospectus transmitted for filing under Rule 433
of the Securities Act was received for filing by the Commission and, in the event that such Permitted Free Writing Prospectus was not so received, it will promptly file the relevant Permitted Free Writing Prospectus.
VII.
(a) Each of the Underwriters, severally and not jointly, represents and warrants to, and agrees with, the Company that:
(i) in relation to each Member State of the European Economic Area (each, a “
Relevant
Member State
”), it has not made and will not make an offer of Securities to the public in that Relevant Member State other than (A) to any legal entity which is a qualified investor as defined in the Prospectus Directive; (B) to
fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Representatives; or (C) in any other
circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a
prospectus pursuant to Article 16 of the Prospectus Directive. For the purpose of this provision, (x) the expression “
an offer to the public
” in relation to any Securities in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities, as the same may be varied in the Relevant Member State by
any measure implementing the Prospectus Directive in the Relevant Member State and (y) the expression “
Prospectus Directive
” means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant
implementing measure in the Relevant Member State;
(ii) (A) it has only communicated or caused to
be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “
FSMA
”))
received by it in connection with the issue or sale of any Securities in circumstances in which Section 21(1) of the FSMA does not apply to
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the Company; and (B) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise
involving the United Kingdom;
(iii) (A) it has not offered or sold and will not offer or sell in
Hong Kong, by means of any document, any Securities other than (i) to “
professional investors
” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance, or (ii) in
other circumstances which do not result in the document being a “
prospectus
” as defined in the Companies Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer or invitation to the public within the meaning of that
Ordinance; and (B) it has not issued or had in its possession for the purposes of issue, and will not issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document
relating to the Securities, which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to Securities
which are or are intended to be disposed of only to persons outside Hong Kong or only to ‘‘professional investors’’ as defined in the Securities and Futures Ordinance and any rules made under that Ordinance;
(iv) the Securities have not been and will not be registered under the Financial Instruments and
Exchange Law of Japan (the “
Financial Instruments and Exchange Law
”) and each Underwriter has agreed that it will not offer or sell any Securities, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan
(which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for
re-offering
or resale, directly or indirectly, in
Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial
guidelines of Japan.
(v) the Prospectus Supplement has not been registered as a prospectus with the
Monetary Authority of Singapore. Accordingly, the Prospectus Supplement and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Securities may not be circulated or distributed, nor
may the Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (A) to an institutional investor under Section 274 of the
Securities and Futures Act, Chapter 289 of Singapore (the “
SFA
”), (B) to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA, or
(C) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA. Where the Securities are subscribed or purchased under Section 275 by a relevant person which is: (y) a corporation (which
is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (z) a trust (where the trustee is not an
accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units
8
of shares and debentures of that corporation or the beneficiaries’ rights and interest in that trust shall not be transferable for 6 months after that corporation or that trust has acquired
the Securities under Section 275 except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in
Section 275 of the SFA; (2) where no consideration is given for the transfer; or (3) by operation of law.
(b) Each of the Underwriters, severally and not jointly, represents and warrants to, and agrees with, the Company that:
(i) it has not made and will not make any offer relating to the Securities that would constitute a
free writing prospectus (other than a free writing prospectus which (A) is a Permitted Free Writing Prospectus or (B) consists of the electronic roadshow slides and accompanying audio recording), without the prior written consent of the
Company, and any free writing prospectus or Permitted Free Writing Prospectus prepared by or on behalf of such Underwriter will only be used by such Underwriter if it complies in all material respects with the requirements of the Securities Act;
(ii) (A) it is aware that, other than registering and qualifying the Securities under the
Securities Act, qualifying the Indenture under the Trust Indenture Act (as defined below) and complying with any applicable U.S. state securities or “Blue Sky” laws, no action has been or will be taken by the Company that would permit the
offer or sale of the Securities or possession or distribution of the Preliminary Prospectus, the Disclosure Package or the Prospectus, or any other offering material relating to the Securities, in any jurisdiction where action for that purpose is
required and (B) accordingly, it will observe all applicable laws and regulations in each jurisdiction in or from which it may directly or indirectly acquire, offer, sell or deliver Securities or have in its possession or distribute the
Preliminary Prospectus, the Disclosure Package or the Prospectus or any other offering material relating to the Securities, and it will obtain any consent, approval or permission required by it for the purchase, offer or sale by it of Securities
under the laws and regulations in force in any such jurisdiction to which it is subject or in which it makes such purchase, offer or sale;
(iii) none of the Company or any Underwriter shall have any responsibility for determining what
compliance is necessary by any Underwriter or any other Underwriter or for the Underwriters or any other Underwriter obtaining such consents, approvals or permissions;
(iv) it will take no action that will impose any obligations on the Company or the other Underwriters;
and
(v) without the Company’s consent, the Underwriters are not authorized to give any
information or to make any representation not contained in the Preliminary Prospectus, the Disclosure Package or the Prospectus or any documents specifically referred to therein or in any free writing prospectus which (A) is a Permitted Free
Writing Prospectus or (B) consists of the electronic roadshow slides and accompanying audio recording, in connection with the offer and sale of the Securities.
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VIII.
The Company represents and warrants to each of the several Underwriters that:
(a) Each part of the Registration Statement, when such part became effective, did not contain, and each part, as
amended or supplemented, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(b) The Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) The Preliminary Prospectus does not contain and the Prospectus, in the form used by the Underwriters to confirm
sales and on the Closing Date, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) At the Initial Sale Time, the Disclosure Package did not, and at the time of each sale of the Securities in
connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date, the Disclosure Package, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) Each Permitted Free Writing Prospectus, when considered together with the Disclosure Package, and any Additional
Written Offering Communication (as defined below), when taken together with the Disclosure Package, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(f) No Issuer Free Writing Prospectus (as defined in
Rule 433 under the Securities Act), as supplemented and amended by and taken together with the Disclosure Package, conflicts in any material respect with the information contained in the Registration Statement and the Prospectus. Each Issuer Free
Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects
with the Securities Act.
(g) As of the applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement complied and as of the Closing Date will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “
Trust Indenture Act
”).
(h) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder.
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(i) Except for (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the Permitted Free Writing Prospectuses identified in Schedule II hereto
and (v) the electronic road show slides and accompanying audio recording furnished to you before first use (“
Additional Written Offering Communication
”), the Company has not prepared, used or referred to, and will not, without
your prior consent, prepare, use or refer to, any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities.
Notwithstanding anything to the contrary in this Agreement, the representations and warranties set forth in the foregoing clauses (a)-(h)
shall not apply to statements in or omissions from the Registration Statement, the Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus (or any amendment or supplement to any of the foregoing) (i) made in reliance upon
and in conformity with information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use therein, or (ii) any information contained in any free writing prospectus prepared by any Underwriter(s),
except to the extent such information has been accurately extracted from the Registration Statement, the Disclosure Package or the Prospectus or any Permitted Free Writing Prospectus prepared by the Company, or otherwise provided in writing by the
Company and included in such free writing prospectus prepared by or on behalf of any Underwriter(s).
(j) The
financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes
in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby, except
as may be expressly stated therein; and any supporting schedules included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus present fairly in all material respects the information required to be
stated therein.
(k) Except in each case as otherwise disclosed or incorporated by reference in the Registration
Statement, the Disclosure Package or the Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus, (i) there
has not been any material change in the capital stock of the Company (other than the exercise of warrants described in the Registration Statement, the Disclosure Package or the Prospectus or the grant and/or exercise of options or other equity-based
awards under existing equity incentive plans described in the Registration Statement, the Disclosure Package or the Prospectus), or long-term debt of the Company or any of the subsidiaries of the Company listed on Schedule III hereto (the
“
Subsidiaries
”), or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock (other than regular quarterly dividends on
11
the Company’s common stock), or any material adverse change in or affecting the business, properties, management, financial position or results of operations of the Company and its
subsidiaries, taken as a whole; (ii) neither the Company nor any of its Subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries, taken
as a whole, or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries, taken as a whole; and (iii) neither the Company nor any of its Subsidiaries has sustained any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except
as would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(l) All pending
or, to the knowledge of the Company, threatened legal or governmental proceedings to which the Company or any of its Subsidiaries is a party or to which any of the properties of the Company or any of its Subsidiaries is subject and that are required
by the Securities Act to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus have been accurately described or incorporated by reference therein in all material respects. There are no material regulations, contracts
or other documents that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as exhibits to the Company’s reports incorporated by reference therein filed by the Company with the
Commission pursuant to the Exchange Act that are not described or incorporated by reference or filed as required. No litigation or proceeding is pending, or, to the knowledge of the Company, threatened to restrain or enjoin the power or ability of
the Company to perform its obligations under this Agreement, the Indenture or the Securities or to consummate the transactions contemplated by the Disclosure Package or the Prospectus.
(m) The Company has filed the Registration Statement with the Commission, and such Registration Statement has become
effective under the Securities Act. The Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities
Act) eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
The Company is not an “ineligible issuer,” as defined under the Securities Act, at the times specified in the Securities Act in connection with the offering of the Securities. No stop order suspending the effectiveness of the Registration
Statement in the United States is in effect, and no proceedings for such purpose are pending before, or, to the knowledge of the Company, threatened by, the Commission.
(n) Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or
by-laws
or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound
or to which any of the properties or assets of the Company or any of its Subsidiaries are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any
12
such default or violation that would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the
Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Disclosure Package or the Prospectus.
(o) The execution and delivery by the Company of, and the performance by the Company of its obligations under, each of
this Agreement, the Indenture and the Securities, do not and will not contravene or violate any provision of applicable law or the certificate of incorporation or
by-laws
of the Company or any indenture,
mortgage or other agreement or instrument binding upon the Company or any of its Subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any Subsidiary.
(p) No material authorization, consent or approval of, or
registration or filing with, any governmental or public body or regulatory authority in the United States is required on the part of the Company for the sale of the Securities in accordance with this Agreement or the performance by the Company of
its obligations under this Agreement, the Indenture and the Securities, other than (i) the registration of the Securities under the Securities Act, (ii) the qualification of the Indenture under the Trust Indenture Act,
(iii) compliance with the securities or “Blue Sky” laws of various jurisdictions, (iv) those required by the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“
FINRA
”), or (v) those
that have already been obtained.
(q) The Company has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the Disclosure Package and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(r) The Company has full power and authority to execute and
deliver each of this Agreement, the Indenture and the Securities and to perform its obligations under each of this Agreement, the Indenture and the Securities; and all action required to be taken for the due and proper authorization, execution and
delivery of each of this Agreement, the Indenture and the Securities (and the consummation of the transactions contemplated thereby) has been duly and validly taken (other than, in the case of the Fourth Supplemental Indenture and the Securities,
the actual execution and delivery of such documents).
(s) The authorized and outstanding capitalization of the
Company conforms in all material respects to the description thereof set forth in each of the Registration Statement, the Disclosure Package and the Prospectus.
(t) All the outstanding shares of capital stock or other equity interests of each Subsidiary owned, directly or
indirectly, by the Company have been duly and validly authorized and issued, are fully paid and
non-assessable
(except, in the case of any foreign subsidiary, for directors’ qualifying shares and except
as otherwise described in the Registration Statement, the
13
Disclosure Package and the Prospectus) and are so owned free and clear of any lien, charge, encumbrance or security interest, except for such liens, charges, encumbrances or security interests
that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(u) The
Securities have been duly authorized and, when executed, authenticated and issued in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be valid and
binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability, and will be
entitled to the benefits of the Indenture pursuant to which such Securities are to be issued.
(v) The issuance of
the Securities will not be subject to any preemptive or similar rights.
(w) (i) The Indenture has been duly
authorized by the Company, (ii) upon effectiveness of the Registration Statement, the Indenture was duly qualified under the Trust Indenture Act, (iii) the Base Indenture is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability and (iv) the Fourth Supplemental Indenture will be, when
executed and delivered by the Company and each other party thereto, a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally and equitable principles of general applicability.
(x) Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, no person has the right to require the Company or any of its Subsidiaries to register any securities for sale under the Securities Act by reason of the issuance and sale of the Securities and the
public offering thereof upon the terms and conditions set forth in this Agreement and the Disclosure Package and to be set forth in the Prospectus.
(y) The Company has not (i) used any free writing prospectus in connection with the offer or sale of the
Securities other than a Permitted Free Writing Prospectus or (ii) used a Permitted Free Writing Prospectus except in compliance with Rule 433 under the Securities Act and otherwise in compliance with the Securities Act.
(z) The Company and its Subsidiaries own, license or otherwise possess, or can acquire on reasonable terms, adequate
rights to use all material patents, patent rights, inventions, copyrights, trade secrets, trademarks, service marks and trade names currently employed by them in connection with the business now operated by them as described in the Registration
Statement, the Disclosure Package and the Prospectus, except as such would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and neither the Company nor any of its Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any of the foregoing, which, if determined adversely to the Company or its Subsidiaries, would have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
14
(aa) Except for matters that are described in the Registration Statement,
the Disclosure Package and the Prospectus or that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, no labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the
knowledge of the Company, is imminent.
(bb) Except as would not give rise to any material liabilities under
Environmental Laws, the Company represents to the best of its knowledge and belief that: (i) the Company and its Subsidiaries are, and at all prior times were, in material compliance with all applicable federal, state, local and foreign laws,
rules and regulations relating to pollution or the protection of the environment, natural resources or human health or safety, including those relating to the generation, storage, treatment, use, handling, transportation, or Release of Hazardous
Materials (collectively, “
Environmental Laws
”), (ii) the Company and its Subsidiaries are in material compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses, (iii) the Company and its Subsidiaries have not received notice of any liability under or relating to violation of, any Environmental Laws, including for the investigation or
remediation of any Release of Hazardous Materials, (iv) there are no proceedings that are pending against the Company or any of its Subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such
proceedings in which it is reasonably believed that no monetary sanctions in excess of $100,000 will be imposed, (v) the Company and its Subsidiaries are not aware of any facts or issues regarding compliance with Environmental Laws, or
liabilities or other obligations under Environmental Laws, including the Release of Hazardous Materials, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its
subsidiaries, taken as a whole, and (vi) none of the Company and its Subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(cc) To the knowledge of the Company, there has been no storage, generation, transportation, use, handling, treatment,
or Release of Hazardous Materials by, relating to or caused by the Company or any of its Subsidiaries at, on, under or from any property or facility owned or operated by the Company in violation of any Environmental Laws or in a manner or amount or
to a location that could reasonably be expected to result in any liability under any Environmental Law, except for any violation or liability which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect
on the Company and its subsidiaries, taken as a whole. “
Hazardous Materials
” means any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including
petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to
liability under any Environmental Law. “
Release
” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in,
into or through the environment.
(dd) Except as disclosed in the Registration Statement, the Disclosure Package
and the Prospectus or as would not have a material adverse effect on the Company and its subsidiaries, taken as a whole: (i) each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“
ERISA
”), which is subject to
15
ERISA, for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of
Section 414(b) or (c) of the Internal Revenue Code of 1986, as amended (the “
Code
”)) would have any liability (other than a “multiemployer plan” within the meaning of Section 3(37) of ERISA) (each, a
“
Plan
”) has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited transaction, within
the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, as applicable, has been satisfied (without taking into account any funding
variance pursuant to Section 412(c) of the Code or Section 302(c) of ERISA) and is reasonably expected to be satisfied in the future (without taking into account any funding variance pursuant to Section 412(c) of the Code or
Section 302(c) of ERISA); (iv) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur with respect to a Plan covered by Title IV of ERISA; (v) neither the
Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA with respect to the termination of, or withdrawal from, a Plan (other than contributions to the Plan or premiums to
the Pension Benefit Guaranty Corporation, in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan,” within the meaning of Section 4001(a)(3) of ERISA); (vi) there is no pending audit or
investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to
result in material liability to the Company and its subsidiaries, taken as a whole; and (vii)
there has not been and is not reasonably likely to be a material increase in the aggregate amount of contributions required to be made to all
Plans by the Company and its subsidiaries in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the Company and its subsidiaries’ most recently completed fiscal year.
(ee) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus: (i) the Company
maintains a system of “disclosure controls and procedures” (as such term is defined in Rule
13a-15(e)
of the Exchange Act) that complies in all material respects with the requirements of the Exchange
Act and has been designed to provide reasonable assurance that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods
specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding
required disclosure; and (ii) the Company has carried out an evaluation of the effectiveness of its disclosure controls and procedures as required by Rule
13a-15
of the Exchange Act. Except as disclosed
in the Registration Statement, the Disclosure Package and the Prospectus, the Company maintains a system of “internal control over financial reporting” (as defined in Rule
13a-15(f)
of the Exchange
Act) that complies in all material respects with the requirements of the Exchange Act and has been designed by, or under the supervision of, its principal executive and principal financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial reporting
16
and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles and include policies and procedures that:
(A) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions of and dispositions of the assets of the Company; (B) provide reasonable assurance that transactions are recorded as
necessary to permit preparation of the consolidated financial statements of the Company and its subsidiaries in accordance with United States generally accepted accounting principles, and that the receipts and expenditures of the Company are being
made only in accordance with authorizations of management and directors of the Company; and (C) provide reasonable assurance regarding the prevention or timely detection of unauthorized acquisition, use, or disposition of assets that could have
a material effect on the consolidated financial statements of the Company and its subsidiaries. Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Company is not aware of any material weaknesses in the
Company’s internal control over financial reporting. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (X) all significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting that have materially adversely affected or are reasonably likely to materially adversely affect the Company’s ability to record, process, summarize and report financial information; and
(Y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
(ff) The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(gg) Except for matters that would not, either individually or collectively, materially adversely affect the
Company’s results of operations and financial condition, neither the Company nor any of its subsidiaries, nor to the Company’s knowledge, any director, officer, affiliate, agent, employee or representative acting on behalf of the Company
or any of its subsidiaries, has violated any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “
FCPA
”), and the rules and regulations thereunder, including, without limitation, by making use of the mails
or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization or approval of the payment or giving of any money, property, gifts or anything else of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or party official or any candidate for foreign political office in contravention of the FCPA; and (B) the Company and its subsidiaries have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies and procedures reasonably designed to promote and achieve compliance therewith.
(hh) The operations of the Company and its subsidiaries are and have been conducted in compliance in all material
respects with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued,
17
administered or enforced by any governmental agency (collectively, the “
Anti-Money Laundering Laws
”), and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ii) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or of any of its subsidiaries (i) is an individual or entity (“
Person
”) that is, or is owned or controlled by a Person that is, the subject of any sanctions administered or enforced by the
U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce, the United Nations Security Council, the European Union, a member state of
the European Union (including sanctions administered or enforced by Her Majesty’s Treasury of the United Kingdom) or other relevant sanctions authority (collectively, “
Sanctions
”) or (ii) will, directly or indirectly,
knowingly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or
could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise).
(jj) Except as otherwise disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there is
and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any applicable provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “
Sarbanes-Oxley Act
”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(kk) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “
Investment Company Act
”).
The representations, warranties and covenants of the Company set forth in this Agreement shall survive the execution and delivery of this
Agreement and the sale of the Securities by the Company. The Company acknowledges that the Underwriters and, for purposes of the opinions to be delivered to the Underwriters pursuant to Article V hereof, counsel for the Company and counsel for the
Underwriters, will rely upon the accuracy and truth of the representations contained in this Agreement and hereby consents to such reliance.
IX.
Except as provided in
Article XVI, whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will be responsible for, and will pay or cause to be paid, all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s
18
counsel and the Company’s accountants in connection with the issuance and sale of the Securities under the Securities Act and all other fees or expenses of the Company in connection with the
preparation and filing of the Registration Statement, the Preliminary Prospectus, the Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and any amendments and
supplements to any of the foregoing, including any filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), as applicable), all printing costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky or World Sky memorandum in connection with the offer and sale of the Securities under state securities laws, securities laws of foreign jurisdictions and all reasonable expenses in
connection with the qualification of the Securities for offer and sale under state securities laws and any applicable foreign jurisdictions, including filing fees and the reasonably incurred fees and disbursements of outside counsel for the
Underwriters in an amount not to exceed $100,000 in the aggregate in connection with such qualification and in connection with the Blue Sky or World Sky memorandum, (iv) all filing fees and the reasonable fees and disbursements of outside
counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by FINRA in an amount not to exceed $100,000 in the aggregate, (v) any fees charged by rating agencies for the rating of the
Securities, (vi) the cost of the preparation, issuance and delivery of the Securities, and the cost of printing certificates representing the Securities, (vii) the costs and charges of the Trustee and any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to investor presentations or any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses
associated with the preparation or dissemination of any electronic road show or the production of road show slides and graphics, fees and expenses of any consultants engaged by the Company in connection with the road show presentations,
travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost attributable to representatives and officers of the Company and any such consultants of any shared transportation in connection
with the road show; and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Article. It is understood, however, that except as provided in
this Article IX, Article X and Article XVI, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses
connected with any offers they may make.
X.
The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, each person, if any, who “controls” (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) such Underwriter and each of such Underwriter’s and such person’s officers and directors against any and all losses, liabilities, costs or
claims (or actions in respect thereof) to which any of them may become subject (including all reasonable costs of investigating, disputing or defending any such claim or action), insofar as such losses, liabilities, costs or claims (or actions in
respect thereof) arise out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement,
19
the Disclosure Package (or any part thereof) or any amendment or supplement thereto, any Permitted Free Writing Prospectus prepared by or on behalf of, used by, or referred to by the Company, any
Additional Written Offering Communication or the Prospectus or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided
that the Company shall not be liable for any such loss, liability, cost, action or claim arising from any statements or omissions made in reliance on and in
conformity with written information provided by an Underwriter to the Company or its representatives expressly for use in the Registration Statement, the Disclosure Package (or any part thereof) or any amendment or supplement thereto, any Permitted
Free Writing Prospectus prepared by or on behalf of, used by, or referred to by the Company, any Additional Written Offering Communication or the Prospectus or any amendment or supplement thereto.
Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, its affiliates, each person, if any, who
“controls” (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the Company’s and such person’s officers and directors from and against any and all losses,
liabilities, costs or claims (or actions in respect thereof) to which any of them may become subject (including all reasonable costs of investigating, disputing or defending any such claim or action), insofar as such losses, liabilities, costs or
claims (or actions in respect thereof) arise out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Disclosure Package (or any part thereof) or any amendment or
supplement thereto, any Permitted Free Writing Prospectus prepared by or on behalf of, used by, or referred to by the Company, any Additional Written Offering Communication or the Prospectus or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made, not misleading, in each case as to the Registration Statement,
the Disclosure Package (or any part thereof) or any amendment or supplement thereto, any Permitted Free Writing Prospectus prepared by or on behalf of, used by, or referred to by the Company, any Additional Written Offering Communication or the
Prospectus or any amendment or supplement thereto, only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission (x) was made in reliance on and in conformity with written information furnished to the
Company by the Underwriters expressly for use in the Registration Statement, the Disclosure Package (or any part thereof) or any amendment or supplement thereto, any Permitted Free Writing Prospectus prepared by or on behalf of, used by, or referred
to by the Company, any Additional Written Offering Communication or the Prospectus or any amendment or supplement thereto, or (y) is contained in any free writing prospectus that is not a Permitted Free Writing Prospectus prepared by or on
behalf of the Underwriter (except to the extent such information has been accurately extracted from the Prospectus, any Permitted Free Writing Prospectus prepared by or on behalf of the Company or any Additional Written Offering Communication).
If any claim, demand, action or proceeding (including any governmental investigation) shall be brought or alleged against an indemnified party
in respect of which indemnity is to be sought against an indemnifying party pursuant to the preceding paragraphs, the indemnified party shall promptly notify the indemnifying party in writing, and the indemnifying party, upon
20
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnified party may designate in
such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding; provided, however, that in the event the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice of any such proceeding, the indemnified party shall then be entitled to retain counsel reasonably satisfactory to itself and the indemnifying party shall pay the reasonable
fees and disbursements of such counsel relating to the proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably
satisfactory to such indemnified party pursuant to the preceding sentence or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one separate law firm (in addition to local counsel where necessary) for all such indemnified parties. Such firm shall be designated in writing by the indemnified party. The
indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is entitled to indemnification hereunder, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such
proceeding and does not include a statement as to an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
If the indemnification provided for in this Article X is unavailable as a matter of law to an indemnified party in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party in respect of such losses, claims, damages or liabilities, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) if the indemnifying party is the Company, in such proportion as is appropriate to reflect the relative benefit received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities, (ii) if an Underwriter is the indemnifying party, in such proportion as is appropriate to reflect the Underwriter’s relative fault on the one hand and that of the Company on
the other hand in connection with the statements or omissions or alleged statements or omissions which resulted in such losses, claims, damages or liabilities, or (iii) if the allocation provided by clause (i) or clause (ii) above, as
the case may be, is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefit referred to in clause (i) above or the relative fault referred to in clause (ii) above, as the case may be,
but also such relative fault (in cases covered by clause (i)) or such relative benefit (in cases covered by clause (ii)) as well as any other relevant equitable considerations. The relative benefit received by the Company on the
21
one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the Prospectus. The relative fault of the Company on the one hand and of the Underwriters on the other shall be determined by reference to, among
other things, and where applicable, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and
the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissions.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Article X were determined by
pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the considerations referred to in the immediately preceding paragraph. The amounts paid or
payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this paragraph, no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities underwritten by such Underwriter and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Article X concerning contribution, no indemnifying party shall be required to make contribution in respect of such losses,
claims, damages or liabilities in any circumstances in which such party would not have been required to provide indemnification. Nothing herein contained shall be deemed to constitute a waiver by an indemnified party of such party’s rights, if
any, to receive contribution pursuant to Section 11(f) of the Securities Act or other applicable law. No person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Article X are several, in proportion to the respective principal amounts of
Securities purchased by each of such Underwriters, and not joint. The remedies provided for in this Article X are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Article X and the representations and warranties of the Company and the
Underwriters in this Agreement, shall remain operative and in full force and effect regardless of: (i) any termination of this Agreement; (ii) any investigation made by an indemnified party or on such party’s behalf or any person
controlling an indemnified party or by or on behalf of the indemnifying party, its directors or officers or any person controlling the indemnifying party; and (iii) acceptance of and payment for any of the Securities.
22
XI.
The Representatives on behalf of the Underwriters may terminate this Agreement (upon consultation with the Company) at any time prior to the
time on the Closing Date at which payment would otherwise be due under this Agreement to the Company if (i) in the opinion of the Representatives, a material disruption in securities settlement, payment or clearance services in the United
States shall have occurred or there shall have been a change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in their view will have a materially adverse effect on the
success of the offering and distribution of the Securities or (ii) trading in securities generally on the New York Stock Exchange shall have been suspended generally or materially limited. In the event of any such termination and after
consultation with the Company, the parties to this Agreement shall be released and discharged from their respective obligations under this Agreement without liability on the part of any Underwriter or on the part of the Company and each party will
pay its own expenses.
XII.
The Company and each Underwriter acknowledge and agree that each Underwriter is acting solely in the capacity of an arm’s length
contractual counterparty to the Company with respect to the offering of the Securities contemplated by this Agreement (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Company or any
other person. Each Underwriter represents and warrants to the Company that, except as previously disclosed in writing to the Company, neither the Underwriter nor any affiliate thereof, to the best of their respective knowledge, has any current
arrangement with any third party which would permit such Underwriter or any such affiliate to benefit financially, directly or indirectly, from the Underwriter’s participation in the determination of the terms of the offering, including the
pricing of the Securities. Additionally, each Underwriter is not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
XIII.
This Agreement shall be
binding upon the Underwriters and the Company, and inure solely to the benefit of the Underwriters and the Company and any other person expressly entitled to indemnification hereunder and the respective personal representatives, successors and
assigns of each, and no other person shall acquire or have any rights under or by virtue of this Agreement.
23
XIV.
Except as otherwise specifically provided herein, all statements, requests, notices and advices hereunder shall be in writing and if to an
Underwriter shall be sufficient in all respects if delivered in person or sent by facsimile transmission (confirmed in writing), or registered mail to each Representative at its address or facsimile number below and if to the Company shall be
sufficient in all respects if delivered by registered mail to the Company at 300 Renaissance Center, Detroit, Michigan 48265, marked for the attention of the Secretary. Notices shall be provided to Deutsche Bank Securities Inc., at 60 Wall Street,
New York, New York 10005, Attention: Debt Capital Markets Syndicate, facsimile number
212-469-4877,
to Merrill Lynch, Pierce, Fenner & Smith Incorporated, 50
Rockefeller Plaza, NY
1-050-12-01
New York, New York 10020, Attention: High Grade Debt- Capital Markets Transaction Management/
Legal, facsimile number
212-901-7881
and to Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, NY 10036, Attention: Investment Banking Division,
facsimile number
212-507-8999.
All notices hereunder shall be effective on receipt.
XV.
If on the Closing Date any
one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder on such date and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated, severally, to take and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names on Schedule I hereto bears
to the aggregate principal amount of Securities set forth opposite the names of all of the remaining
non-defaulting
Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date. Notwithstanding the foregoing, if the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase on the Closing Date shall exceed 10% of the aggregate
principal amount of Securities to be purchased on such date, after giving effect to any alternative arrangements for the purchase of such Securities that are satisfactory to the Representatives and the Company and which are made within
thirty-six
(36) hours after the Closing Date, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of such Securities, and if such
non-defaulting
Underwriters do not purchase all of the Securities, this Agreement will terminate without liability to any
non-defaulting
Underwriter or the Company, except
that the provisions of Article X shall not terminate and shall remain in effect. In the event of a default by any Underwriter as set forth in this Article XV, the Closing Date shall be postponed for such period, not exceeding five (5) business
days, as the Representatives and the Company shall determine in order that the required changes in the Registration Statement, the Disclosure Package, the Prospectus or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting
Underwriter for damages caused by its default hereunder.
24
XVI.
If this Agreement shall be terminated by the Underwriters or any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement (other than by reason of a default by any of the Underwriters), the Company
will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all reasonable
out-of-pocket
expenses (including the reasonable fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with the Securities.
Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement has been validly terminated pursuant to the
immediately preceding paragraph or pursuant to Article XI, the Representatives shall reimburse the Company for all of the Company’s reasonable outside counsel fees, disbursements and expenses incurred in connection with the offering.
XVII.
This Agreement shall be
governed by and construed in accordance with the laws of the State of New York. Each party to this Agreement irrevocably agrees that any legal action or proceeding against it arising out of or in connection with this Agreement or for recognition or
enforcement of any judgment rendered against it in connection with this Agreement may be brought in any Federal or New York State court sitting in the Borough of Manhattan, and, by execution and delivery of this Agreement, such party hereby
irrevocably accepts and submits to the jurisdiction of each of the aforesaid courts in personam, generally and unconditionally with respect to any such action or proceeding for itself and in respect of its property, assets and revenues. Each party
hereby also irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum. The Company and each of the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
XVIII.
Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters (and their respective affiliates),
and any such action taken by the Representatives shall be binding upon the Underwriters (and their respective affiliates).
XIX.
This Agreement may be signed in any number of counterparts, each of which so executed shall be deemed to be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. The exchanges of copies of this Agreement and of signature pages hereto by electronic format (i.e., “pdf” or “tif”) transmission shall constitute effective
execution and delivery of this Agreement as to the parties hereto and may be used in lieu of the exchange of the original Agreement for all purposes. Signatures of the parties hereto transmitted by electronic format (i.e., “pdf” or
“tif”) shall be deemed to be their original signatures for all purposes.
25
XX.
In accordance with the requirements of the USA PATRIOT Act (Title III of Pub. L,
107-56
(signed into
law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their clients, which may include the name and address of their clients, as well as other information that will allow the Underwriters
to properly identify their clients.
******
26
|
|
|
|
|
Very truly yours,
|
|
|
|
GENERAL MOTORS COMPANY
|
|
|
|
|
By:
|
|
/s/ Charles K. Stevens, III
|
|
Name:
|
|
Charles K. Stevens, III
|
|
Title:
|
|
Executive Vice President &
Chief
Financial Officer
|
[
Signature Page to
Underwriting Agreement
]
Accepted as of the date hereof
Deutsche Bank Securities Inc.
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
Morgan Stanley & Co. LLC
Acting
severally on behalf of themselves and the several
Underwriters named in Schedule I hereto
|
|
|
|
|
By:
|
|
DEUTSCHE BANK SECURITIES INC.
|
|
|
|
|
By:
|
|
/s/ Ritu Ketkar
|
|
Name:
|
|
Ritu Ketkar
|
|
Title:
|
|
Managing Director
|
|
|
|
|
|
By:
|
|
/s/ Timothy Azoia
|
|
Name:
|
|
Timothy Azoia
|
|
Title:
|
|
Director
|
|
|
|
|
|
By:
|
|
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
|
|
|
|
|
By:
|
|
/s/ Matt Basler
|
|
Name:
|
|
Matt Basler
|
|
Title:
|
|
Managing Director and Team Manager,
Debt
Capital Markets
|
|
|
|
|
|
By:
|
|
MORGAN STANLEY & CO. LLC
|
|
|
|
|
By:
|
|
/s/ Yurij Slyz
|
|
Name:
|
|
Yurij Slyz
|
|
Title:
|
|
Executive Director
|
[
Signature Page to
Underwriting Agreement
]
SCHEDULE I
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal
Amount of
Floating Rate
Notes to be
Purchased
|
|
|
Principal
Amount of
2027 Notes to
be Purchased
|
|
|
Principal
Amount of
2038 Notes to
be Purchased
|
|
|
Principal
Amount of
2048 Notes to
be Purchased
|
|
|
Deutsche Bank Securities Inc.
|
|
$
|
48,220,000
|
|
|
$
|
72,329,000
|
|
|
$
|
96,438,000
|
|
|
$
|
72,329,000
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
$
|
48,220,000
|
|
|
$
|
72,329,000
|
|
|
$
|
96,438,000
|
|
|
$
|
72,329,000
|
|
|
Morgan Stanley & Co. LLC.
|
|
$
|
48,220,000
|
|
|
$
|
72,329,000
|
|
|
$
|
96,438,000
|
|
|
$
|
72,329,000
|
|
|
Goldman Sachs & Co. LLC
|
|
$
|
48,220,000
|
|
|
$
|
72,328,000
|
|
|
$
|
96,439,000
|
|
|
$
|
72,329,000
|
|
|
J.P. Morgan Securities LLC
|
|
$
|
48,220,000
|
|
|
$
|
72,328,000
|
|
|
$
|
96,439,000
|
|
|
$
|
72,329,000
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
16,747,000
|
|
|
$
|
25,119,000
|
|
|
$
|
33,494,000
|
|
|
$
|
25,119,000
|
|
|
SG Americas Securities, LLC
|
|
$
|
16,747,000
|
|
|
$
|
25,119,000
|
|
|
$
|
33,494,000
|
|
|
$
|
25,119,000
|
|
|
Barclays Capital Inc.
|
|
$
|
16,747,000
|
|
|
$
|
25,119,000
|
|
|
$
|
33,494,000
|
|
|
$
|
25,119,000
|
|
|
BBVA Securities Inc.
|
|
$
|
16,747,000
|
|
|
$
|
25,119,000
|
|
|
$
|
33,494,000
|
|
|
$
|
25,119,000
|
|
|
BNP Paribas Securities Corp.
|
|
$
|
16,747,000
|
|
|
$
|
25,119,000
|
|
|
$
|
33,494,000
|
|
|
$
|
25,119,000
|
|
|
Commerz Markets LLC
|
|
$
|
16,746,000
|
|
|
$
|
25,120,000
|
|
|
$
|
33,494,000
|
|
|
$
|
25,119,000
|
|
|
Mizuho Securities USA LLC
|
|
$
|
16,746,000
|
|
|
$
|
25,120,000
|
|
|
$
|
33,494,000
|
|
|
$
|
25,119,000
|
|
|
RBS Securities Inc.
|
|
$
|
16,746,000
|
|
|
$
|
25,120,000
|
|
|
$
|
33,493,000
|
|
|
$
|
25,120,000
|
|
|
Credit Agricole Securities (USA) Inc.
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
ICBC Standard Bank Plc
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
Lloyds Securities Inc.
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
RBC Capital Markets, LLC
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
Scotia Capital (USA) Inc.
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
SMBC Nikko Securities America, Inc.
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
TD Securities (USA) LLC
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
Banco Bradesco BBI S.A.
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
BB Securities Limited
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
UniCredit Capital Markets LLC
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
U.S. Bancorp Investments, Inc.
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
Santander Investment Securities Inc.
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
BNY Mellon Capital Markets, LLC
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
PNC Capital Markets LLC
|
|
$
|
8,219,000
|
|
|
$
|
12,329,000
|
|
|
$
|
16,438,000
|
|
|
$
|
12,329,000
|
|
|
Mischler Financial Group, Inc.
|
|
$
|
3,287,000
|
|
|
$
|
4,932,000
|
|
|
$
|
6,575,000
|
|
|
$
|
4,932,000
|
|
|
Samuel A. Ramirez & Company, Inc.
|
|
$
|
3,287,000
|
|
|
$
|
4,932,000
|
|
|
$
|
6,575,000
|
|
|
$
|
4,932,000
|
|
|
The Williams Capital Group, L.P.
|
|
$
|
3,287,000
|
|
|
$
|
4,932,000
|
|
|
$
|
6,575,000
|
|
|
$
|
4,932,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total:
|
|
$
|
500,000,000
|
|
|
$
|
750,000,000
|
|
|
$
|
1,000,000,000
|
|
|
$
|
750,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
I-1
SCHEDULE II
Permitted Free Writing Prospectus
|
1.
|
Pricing term sheet, in the form attached as Annex
II-A
hereto.
|
II-1
Annex II-A
Free Writing Prospectus filed pursuant to Rule 433
Relating to the Preliminary Prospectus Supplement
dated August 2, 2017 to the Prospectus dated
February 7, 2017. Registration Statement
No. 333-215924
PRICING TERM SHEET
Dated as of August 2, 2017
GENERAL MOTORS COMPANY
Floating Rate Senior Notes due 2020
4.200% Senior Notes due 2027
5.150% Senior Notes due 2038
5.400% Senior Notes due 2048
The
information in this pricing term sheet relates only to the offering of the Notes and should be read together with the preliminary prospectus supplement of General Motors Company dated August 2, 2017 (the “Preliminary Prospectus
Supplement”) to its prospectus dated February 7, 2017, and supersedes the information in the Preliminary Prospectus Supplement to the extent inconsistent with the information in the Preliminary Prospectus Supplement. In all other respects,
this pricing term sheet is qualified in its entirety by reference to the Preliminary Prospectus Supplement. Terms used herein but not defined herein shall have the respective meanings as set forth in the Preliminary Prospectus Supplement. All
references to dollar amounts are references to U.S. dollars.
Terms
Applicable to the Notes
|
|
|
|
|
Issuer:
|
|
General Motors Company
|
|
|
|
|
Trade Date:
|
|
August 2, 2017
|
|
|
|
|
Settlement Date:
|
|
August 7, 2017 (T+3)
|
|
|
|
|
Joint Book-Running Managers:
|
|
Deutsche Bank Securities Inc.
Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. LLC
Goldman Sachs & Co.
LLC
J.P. Morgan Securities LLC
|
|
|
|
|
Joint Lead Managers:
|
|
Citigroup Global Markets Inc.
SG Americas Securities, LLC
Barclays Capital Inc.
BBVA Securities Inc.
BNP Paribas Securities Corp.
Commerz Markets LLC
Mizuho Securities USA LLC
RBS Securities Inc.
|
|
|
|
|
Co-Managers:
|
|
Credit Agricole Securities (USA) Inc.
ICBC Standard Bank Plc
Lloyds Securities Inc.
|
II-A-1
|
|
|
|
|
|
|
RBC Capital Markets, LLC
Scotia Capital (USA) Inc.
SMBC Nikko Securities America, Inc.
TD Securities (USA) LLC
Banco Bradesco BBI S.A.
BB Securities Limited
UniCredit Capital Markets LLC
U.S. Bancorp Investments, Inc.
Santander Investment Securities Inc.
BNY Mellon Capital Markets, LLC
PNC Capital Markets LLC
Mischler Financial Group, Inc.
Samuel A. Ramirez & Company, Inc.
The Williams Capital Group, L.P.
|
Terms Applicable to the
Floating Rate Senior Notes due 2020
|
|
|
|
|
Title of Securities:
|
|
Floating Rate Senior Notes due 2020
|
|
|
|
|
Security Type:
|
|
Senior Unsecured Notes
|
|
|
|
|
Principal Amount:
|
|
$500,000,000
|
|
|
|
|
Price to Public:
|
|
100.000%, plus accrued and unpaid interest, if any, from August 7, 2017
|
|
|
|
|
Maturity Date:
|
|
August 7, 2020
|
|
|
|
|
Interest Rate Basis:
|
|
Three-month LIBOR
|
|
|
|
|
Spread to LIBOR:
|
|
+ 80 bps
|
|
|
|
|
Interest Payment Dates:
|
|
February 7, May 7, August 7 and November 7, beginning November 7,
2017
|
|
|
|
|
Interest Rate Determination
:
|
|
Three-month LIBOR, determined as of two London business days prior to the settlement date or the relevant interest reset date, as applicable, plus 0.800% per annum
|
|
|
|
|
Interest Reset Dates:
|
|
Quarterly on February 7, May 7, August 7 and November 7, commencing on
November 7, 2017
|
|
|
|
|
Initial Interest Reset Period:
|
|
Period from and including August 7, 2017 to but excluding the first interest reset
date
|
|
|
|
|
Day Count Convention:
|
|
Actual / 360
|
|
|
|
|
Redemption:
|
|
The notes shall not be redeemable prior to their maturity
|
|
|
|
|
Regular Record Dates
:
|
|
15 calendar days prior to each interest payment date
|
|
|
|
|
Calculation Agent
:
|
|
The Bank of New York Mellon
|
|
|
|
|
Denominations:
|
|
$2,000 and integral multiples of $1,000 in excess thereof
|
II-A-2
|
|
|
|
|
|
|
|
CUSIP / ISIN:
|
|
37045VAM2 / US37045VAM28
|
Terms Applicable to the
4.200% Senior Notes due 2027
|
|
|
|
|
Title of Securities:
|
|
4.200% Senior Notes due 2027
|
|
|
|
|
Security Type:
|
|
Senior Unsecured Notes
|
|
|
|
|
Principal Amount:
|
|
$750,000,000
|
|
|
|
|
Price to Public:
|
|
99.852%, plus accrued and unpaid interest, if any, from August 7, 2017
|
|
|
|
|
Maturity Date:
|
|
October 1, 2027
|
|
|
|
|
Coupon (Interest Rate):
|
|
4.200% per year
|
|
|
|
|
Yield to Maturity:
|
|
4.217%
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+ 195 bps
|
|
|
|
|
Benchmark Treasury:
|
|
2.375% due May 15, 2027
|
|
|
|
|
Benchmark Treasury Price and Yield:
|
|
100-30;
2.267%
|
|
|
|
|
Interest Payment Dates:
|
|
April 1 and October 1, beginning April 1, 2018
|
|
|
|
|
Record Dates:
|
|
March 15 and September 15
|
|
|
|
|
Day Count Convention:
|
|
30 / 360
|
|
|
|
|
Make-whole Call:
|
|
T+30 bps prior to July 1, 2027
|
|
|
|
|
Par Call:
|
|
On or after July 1, 2027
|
|
|
|
|
Denominations:
|
|
$2,000 and integral multiples of $1,000 in excess thereof
|
|
|
|
|
CUSIP / ISIN:
|
|
37045VAN0 / US37045VAN01
|
Terms Applicable to the
5.150% Senior Notes due 2038
|
|
|
|
|
Title of Securities:
|
|
5.150% Senior Notes due 2038
|
|
|
|
|
Security Type:
|
|
Senior Unsecured Notes
|
|
|
|
|
Principal Amount:
|
|
$1,000,000,000
|
II-A-3
|
|
|
|
|
Price to Public:
|
|
99.937%, plus accrued and unpaid interest, if any, from August 7, 2017
|
|
|
|
|
Maturity Date:
|
|
April 1, 2038
|
|
|
|
|
Coupon (Interest Rate):
|
|
5.150% per year
|
|
|
|
|
Yield to Maturity:
|
|
5.154%
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+ 230 bps
|
|
|
|
|
Benchmark Treasury:
|
|
3.000% due February 15, 2047
|
|
|
|
|
Benchmark Treasury Price and Yield:
|
|
102-28+;
2.854%
|
|
|
|
|
Interest Payment Dates:
|
|
April 1 and October 1, beginning April 1, 2018
|
|
|
|
|
Record Dates:
|
|
March 15 and September 15
|
|
|
|
|
Day Count Convention:
|
|
30 / 360
|
|
|
|
|
Make-whole Call:
|
|
T+35 bps prior to October 1, 2037
|
|
|
|
|
Par Call:
|
|
On or after October 1, 2037
|
|
|
|
|
Denominations:
|
|
$2,000 and integral multiples of $1,000 in excess thereof
|
|
|
|
|
CUSIP / ISIN:
|
|
37045VAP5 / US37045VAP58
|
Terms Applicable to the
5.400% Senior Notes due 2048
|
|
|
|
|
Title of Securities:
|
|
5.400% Senior Notes due 2048
|
|
|
|
|
Security Type:
|
|
Senior Unsecured Notes
|
|
|
|
|
Principal Amount:
|
|
$750,000,000
|
|
|
|
|
Price to Public:
|
|
99.927%, plus accrued and unpaid interest, if any, from August 7, 2017
|
|
|
|
|
Maturity Date:
|
|
April 1, 2048
|
|
|
|
|
Coupon (Interest Rate):
|
|
5.400% per year
|
|
|
|
|
Yield to Maturity:
|
|
5.404%
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+ 255 bps
|
|
|
|
|
Benchmark Treasury:
|
|
3.000% due February 15, 2047
|
|
|
|
|
Benchmark Treasury Price and Yield:
|
|
102-28+;
2.854%
|
|
|
|
|
Interest Payment Dates:
|
|
April 1 and October 1, beginning April 1, 2018
|
II-A-4
|
|
|
|
|
|
|
|
Record Dates:
|
|
March 15 and September 15
|
|
|
|
|
Day Count Convention:
|
|
30 / 360
|
|
|
|
|
Make-whole Call:
|
|
T+40 bps prior to October 1, 2047
|
|
|
|
|
Par Call:
|
|
On or after October 1, 2047
|
|
|
|
|
Denominations:
|
|
$2,000 and integral multiples of $1,000 in excess thereof
|
|
|
|
|
CUSIP / ISIN:
|
|
37045VAQ3 / US37045VAQ32
|
This communication is for informational purposes only and does not constitute an offer to sell, or a solicitation of an
offer to buy, any security. No offer to buy securities described herein can be accepted, and no part of the purchase price thereof can be received, unless the person making such investment decision has received and reviewed the information contained
in the relevant prospectus in making their investment decisions. The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by contacting Deutsche Bank Securities Inc. toll-free at
1-800-503-4611,
Merrill Lynch, Pierce, Fenner & Smith Incorporated toll-free at
1-800-294-1322
and Morgan Stanley & Co. LLC toll-free at
1-866-718-1649.
This communication is not intended to be a confirmation as required under Rule
10b-10
of the Securities
Exchange Act of 1934. A formal confirmation will be delivered to you separately. This notice shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of the Notes in any state or jurisdiction in which
such offer, solicitation or sale would be unlawful.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
II-A-5
SCHEDULE III
List of Principal Subsidiaries
OnStar,
LLC
General Motors of Canada Company
General Motors de
Mexico, S. de R.L. de C.V.
General Motors do Brasil Ltda.
GM Korea Company
III-1
EXHIBIT
A-1
OPINION OF AN ATTORNEY ON THE LEGAL STAFF OF THE COMPANY
[GM Letterhead]
August 7, 2017
DEUTSCHE BANK SECURITIES INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. LLC
As
Representatives of the several Underwriters
named in Schedule I of the Underwriting Agreement referred to below
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY
10005
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York,
New York 10016
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York
10036
$500,000,000 Floating Rate Senior Notes due 2020
$750,000,000 4.200% Senior Notes due 2027
$1,000,000,000 5.150% Senior Notes due 2038
$750,000,000 5.400% Senior Notes due 2048
Ladies and Gentlemen:
I am
issuing this letter in my capacity as an Attorney on the Legal Staff of General Motors Company, a Delaware corporation (the “
Company
”), in response to the requirements of Article V, paragraph (d) of the Underwriting
Agreement, dated August 2, 2017 (the “
Underwriting Agreement
”), by and among the Company and the several underwriters named in Schedule I thereto (collectively, the “
Underwriters
”), for whom
Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC are acting
A-1-1
as representatives (the “
Representatives
”). The Underwriting Agreement relates to the offering (the “
Offering
”) of $500,000,000 aggregate principal
amount of the Company’s Floating Rate Senior Notes due 2020, $750,000,000 aggregate principal amount of the Company’s 4.200% Senior Notes due 2027, $1,000,000,000 aggregate principal amount of the Company’s 5.150% Senior Notes due
2038 and $750,000,000 aggregate principal amount of the Company’s 5.400% Senior Notes due 2048 (collectively, the “
Securities
”) to be issued pursuant to the provisions of an Indenture, dated as of September 27,
2013, and a Fourth Supplemental Indenture, dated as of the date hereof (collectively, the “
Indenture
”), between the Company and The Bank of New York Mellon, as trustee (the “
Trustee
”). Every
capitalized term which is defined or given a special meaning in the Underwriting Agreement and which is not given a different meaning in this letter has the same meaning whenever it is used in this letter as the meaning it is given in the
Underwriting Agreement.
In connection with the preparation of this letter, I have among other things read:
|
|
(a)
|
the Registration Statement on Form
S-3
(Registration
No. 333-215924),
filed by the Company with the Securities and Exchange Commission
(the “
Commission
”) under the Securities Act of 1933, as amended (the “
Securities Act
”) (which registration statement, at the date of the Underwriting Agreement, including the documents incorporated by
reference therein and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act, is herein called the “
Registration Statement
”);
|
|
|
(b)
|
the prospectus (including the documents incorporated by reference therein) of the Company dated February 7, 2017 (the “
Basic Prospectus
”);
|
|
|
(c)
|
the preliminary prospectus supplement of the Company dated August 2, 2017 relating to the Offering (including the documents incorporated by reference therein), together with the Basic Prospectus that it supplements
and the Permitted Free Writing Prospectus listed on Schedule II to the Underwriting Agreement (collectively, the “
Disclosure Package
”);
|
|
|
(d)
|
the Basic Prospectus, as supplemented by the prospectus supplement of the Company dated August 2, 2017 relating to the Offering (including the documents incorporated by reference therein) (together, the
“
Prospectus
”);
|
|
|
(e)
|
an executed copy of the Indenture;
|
|
|
(f)
|
an executed copy of the Underwriting Agreement;
|
|
|
(g)
|
a specimen of the Securities;
|
A-1-2
|
|
(h)
|
a copy of the resolutions of the Board of Directors of the Company (the “
Board
”) adopted on February 6, 2017, approving (among other things) the filing of the Registration Statement;
|
|
|
(i)
|
a copy of the resolutions of the Board adopted on February 25, 2017, approving (among other things) various offering matters;
|
|
|
(j)
|
a copy of the resolutions of the Finance Committee of the Board adopted on June 5, 2017, approving (among other things) various offering matters;
|
|
|
(k)
|
a copy of the resolutions of the Board adopted on June 6, 2017, approving (among other things) various offering matters;
|
|
|
(l)
|
a copy of the resolutions of a pricing committee, approving (among other things) various terms of the Securities;
|
|
|
(m)
|
a copy of the Restated Certificate of Incorporation of the Company, certified as of July 31, 2017 by the Secretary of State of the State of Delaware;
|
|
|
(n)
|
a copy of the Amended and Restated
By-Laws
of the Company;
|
|
|
(o)
|
copies of the documents filed pursuant to the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), and incorporated by reference in the documents referred to in paragraphs
(a) through (d), inclusive, above (the “
Incorporated Documents
”);
|
|
|
(p)
|
a Certificate of Good Standing of the Company, dated July 31, 2017, issued by the Secretary of State of the State of Delaware (the “
Certificate of Good Standing
”); and
|
|
|
(q)
|
copies of all certificates and other documents delivered today in connection with the consummation of the Offering.
|
In addition, I have examined and relied on the originals or copies certified or otherwise identified to my satisfaction of all such corporate
records of the Company and such other instruments and certificates of public officials, officers and representatives of the Company and such other persons, and I have made such investigations of law as I have deemed appropriate as a basis for the
opinions expressed below. I have assumed that there has been no relevant change or development between the dates as of which the information cited in the preceding sentence was given and the date of this letter and that the information upon which I
have relied is accurate and does not omit disclosures necessary to prevent such information from being misleading.
I have assumed the
conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“
EDGAR
”), except for required EDGAR formatting changes, to physical copies of the documents delivered to
the Underwriters and submitted for my examination.
A-1-3
Based upon the foregoing and such other information and documents as I have considered necessary
for the purposes hereof, I am of the opinion that:
|
|
1.
|
The statements under the caption “Legal Proceedings” in the Company’s Annual Report on Form
10-K
for the year ended December 31, 2016 (as updated by the
statements in “Part II, Item 1. Legal Proceedings” in the Company’s Quarterly Reports on Form
10-Q
for the quarterly periods ended March 31, 2017 and June 30, 2017), in each case
insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present in all material respects the information called for with respect to such legal matters, documents and proceedings.
|
|
|
2.
|
To my knowledge, other than as set forth or contemplated in the Registration Statement, the Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is a party to, nor is any of its or
their property the subject of, any pending or threatened action or proceeding before any court or brought by any governmental agency or body that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on
the Company and its subsidiaries taken as a whole, or that would reasonably be expected to materially and adversely affect the issuance of the Securities by the Company as contemplated by the Underwriting Agreement.
|
In addition to the qualifications set forth above, the opinions and other matters in this letter are qualified in their entirety and subject
to the following:
A. Except as set forth in paragraph (1) above, I make no representation that I have
independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus or that the actions taken in connection with the preparation of the Registration
Statement, the Disclosure Package or the Prospectus were sufficient to cause the Registration Statement, the Disclosure Package or the Prospectus to be accurate, complete or fair (including the actions described in the next paragraph).
B. I have assumed for purposes of this letter the following: that each document I have reviewed for purposes of this
letter is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original and all signatures on each such document are genuine; that the Underwriting Agreement, the
Indenture and every other agreement I have examined for purposes of this letter constitutes a valid and binding obligation of each party to that document and that each such party has satisfied all legal requirements that are applicable to such party
to the extent necessary to entitle such party to enforce such agreement (except that I make no such assumption with respect to the Company); and that you have acted in good faith and without notice of any fact which has caused you to reach any
conclusion contrary to any of the advice provided in this letter.
A-1-4
C. In preparing this letter I have relied without independent verification
upon: (i) factual information represented to be true in the Underwriting Agreement and other documents specifically identified at the beginning of this letter as having been read by me; (ii) factual information provided to me by the other
representatives of the Company; and (iii) factual information I have obtained from such other sources as I have deemed reasonable. I have assumed that the information upon which I have relied is accurate and does not omit disclosures necessary
to prevent such information from being misleading. I have not undertaken any investigation or search of court records for purposes of this letter.
D. I confirm that I do not have knowledge that has caused me to conclude that my reliance and assumptions cited in the
two immediately preceding paragraphs are unwarranted. Whenever this letter provides advice about (or based upon) my knowledge of any particular information or about any information which has or has not come to my attention such advice is based
entirely on my conscious awareness at the time this letter is delivered on the date it bears.
E. I am a member of
the Bar of the State of Michigan, and I express no opinion as to the laws of any other jurisdiction, other than the law of the State of Michigan.
F. My advice on each legal issue addressed in this letter represents my opinion as to how that issue would be resolved
were it to be considered by the highest court of the jurisdiction upon whose law my opinion on that issue is based. The manner in which any particular issue would be treated in any actual court case would depend in part on facts and circumstances
particular to the case, and this letter is not intended to guarantee the outcome of any legal dispute which may arise in the future.
This
letter speaks as of the time of its delivery on the date it bears. I do not assume any obligation to provide you with any subsequent opinion or advice by reason of any fact about which I did not have knowledge at that time, by reason of any change
subsequent to that time in any law, other governmental requirement or interpretation thereof covered by any of my opinions or advice, or for any other reason.
This letter may be relied upon by you only for the purpose served by the provision in the Underwriting Agreement cited in the initial
paragraph of this letter in response to which it has been delivered. Without my written consent: (i) no person other than you may rely on this letter for any purpose; (ii) this letter may not be cited or quoted in any financial statement,
prospectus, private placement memorandum or other similar document; (iii) this letter may not be cited or quoted in any other document or communication which might encourage reliance upon this letter by any person or for any purpose excluded by
the restrictions in this paragraph; and (iv) copies of this letter may not be furnished to anyone for purposes of encouraging such reliance.
Very truly yours,
A-1-5
EXHIBIT
A-2
10B-5
LETTER OF AN ATTORNEY ON THE LEGAL STAFF OF THE COMPANY
[GM Letterhead]
August 7, 2017
DEUTSCHE BANK SECURITIES INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. LLC
As
Representatives of the several Underwriters
named in Schedule I of the Underwriting Agreement referred to below
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY
10005
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York,
New York 10016
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York
10036
$500,000,000 Floating Rate Senior Notes due 2020
$750,000,000 4.200% Senior Notes due 2027
$1,000,000,000 5.150% Senior Notes due 2038
$750,000,000 5.400% Senior Notes due 2048
Ladies and Gentlemen:
I am
issuing this letter in my capacity as an Attorney on the Legal Staff of General Motors Company, a Delaware corporation (the “
Company
”), in response to the requirements of Article V, paragraph (d) of the Underwriting
Agreement, dated August 2, 2017 (the “
Underwriting Agreement
”), by and among the Company and the several underwriters named in Schedule I thereto (collectively, the “
Underwriters
”), for whom Deutsche
Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC are acting
A-2-1
as representatives (the “
Representatives
”). The Underwriting Agreement relates to the offering (the “
Offering
”) of $500,000,000 aggregate principal
amount of the Company’s Floating Rate Senior Notes due 2020, $750,000,000 aggregate principal amount of the Company’s 4.200% Senior Notes due 2027, $1,000,000,000 aggregate principal amount of the Company’s 5.150% Senior Notes due
2038 and $750,000,000 aggregate principal amount of the Company’s 5.400% Senior Notes due 2048 (collectively, the “
Securities
”) to be issued pursuant to the provisions of an Indenture, dated as of September 27,
2013, and a Fourth Supplemental Indenture, dated as of the date hereof (collectively, the “
Indenture
”), between the Company and The Bank of New York Mellon, as trustee (the “
Trustee
”). Every
capitalized term which is defined or given a special meaning in the Underwriting Agreement and which is not given a different meaning in this letter has the same meaning whenever it is used in this letter as the meaning it is given in the
Underwriting Agreement.
The Securities have been offered pursuant to:
|
|
(a)
|
the Registration Statement on Form
S-3
(Registration
No. 333-215924),
filed by the Company with the Securities and Exchange Commission
(the “
Commission
”) under the Securities Act of 1933, as amended (the “
Securities Act
”) (which registration statement, at the date of the Underwriting Agreement, including the documents incorporated by
reference therein and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act, is herein called the “
Registration Statement
”);
|
|
|
(b)
|
the prospectus (including the documents incorporated by reference therein) of the Company, dated February 7, 2017 (the “
Basic Prospectus
”), as supplemented by the preliminary prospectus
supplement of the Company, dated August 2, 2017 relating to the Offering (including the documents incorporated by reference therein), together with the Permitted Free Writing Prospectus listed on Schedule II to the Underwriting Agreement
(collectively, the “
Disclosure Package
”); and
|
|
|
(c)
|
the Basic Prospectus, as supplemented by the prospectus supplement of the Company, dated August 2, 2017 (the “
Prospectus Supplement
”) relating to the Offering (including the documents
incorporated by reference therein) (together, the “
Prospectus
”).
|
In acting as an Attorney on the
Legal Staff of the Company in connection with the transactions described in the first paragraph above, I have participated in various conference calls with officers and representatives of the Company and its affiliates, as well as with
representatives of the Underwriters and their counsel, at which the contents of the Registration Statement, the Prospectus and the Disclosure Package were discussed and reviewed.
The purpose of my professional engagement was not to establish factual matters, and the preparation of the Registration Statement, the
Prospectus and the Disclosure Package involved many determinations of a wholly or partially
non-legal
character. I make no representation that I
A-2-2
have independently verified the accuracy, completeness or fairness of the Registration Statement, the Prospectus or the Disclosure Package or that the actions taken in connection with the
preparation of the Registration Statement, the Prospectus or the Disclosure Package (including the actions described in the immediately preceding paragraph) were sufficient to cause the Registration Statement, the Prospectus or the Disclosure
Package to be accurate, complete or fair. I am not passing upon or assuming responsibility for the accuracy, completeness or fairness of the statements included or incorporated by reference in or omitted from the Registration Statement, the
Prospectus, or the Disclosure Package and have made no independent check or verification thereof (except as set forth in paragraphs 1 and 2 of my opinion letter to you of even date herewith). However, subject to and on the basis of the foregoing and
subject to the other limitations set forth in this letter, I advise you that nothing has come to my attention in the course of such discussions and reviews that has caused me to believe that:
|
|
(a)
|
the Registration Statement, as of the Effective Time (defined below), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
|
|
|
(b)
|
the Disclosure Package, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or
|
|
|
(c)
|
the Prospectus, as of the date of the Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading.
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I am not
advising and I express no view or belief and make no statement with respect to (i) the financial statements and schedules and notes thereto or other financial, numerical, accounting or quantitative information (or the assumptions with respect
thereto) included in or incorporated by reference in (or omitted from) the Registration Statement or the exhibits thereto, the Disclosure Package or the Prospectus; and (ii) the Trustee’s statement of eligibility on Form
T-1
filed as an exhibit to the Registration Statement.
In addition, I have made no inquiry into the
delivery of any documents to any investor, and have further assumed that the Disclosure Package was conveyed to investors at or prior to the Initial Sale Time. Finally, whenever this letter provides advice about (or based upon) my knowledge of any
particular information or about any information which has or has not come to my attention such advice is based entirely on my conscious awareness at the time this letter is delivered on the date it bears.
As used herein, “
Effective Time
” means the time of effectiveness of the Registration Statement for purposes of
Section 11 of the Securities Act, as such section applies to the Underwriters.
A-2-3
This letter speaks as of the time of its delivery on the date it bears. I do not assume any
obligation to provide you with any subsequent advice by reason of any fact about which I did not have knowledge at that time, by reason of any change subsequent to that time in any law, other governmental requirement or interpretation thereof
covered by any of my advice, or for any other reason.
This letter may be relied upon by you only for the purpose served by the provision
in the Underwriting Agreement cited in the initial paragraph of this letter in response to which it has been delivered. Without my written consent: (i) no person other than you may rely on this letter for any purpose; (ii) this letter may
not be cited or quoted in any financial statement, prospectus, private placement memorandum or other similar document; (iii) this letter may not be cited or quoted in any other document or communication which might encourage reliance upon this
letter by any person or for any purpose excluded by the restrictions in this paragraph; and (iv) copies of this letter may not be furnished to anyone for purposes of encouraging such reliance.
Very truly yours,
A-2-4
EXHIBIT
A-3
OPINION OF COUNSEL TO THE COMPANY
DEUTSCHE BANK SECURITIES INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. LLC
As
Representatives of the several Underwriters
named in Schedule I of the Underwriting Agreement referred to below
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY
10005
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New
York 10016
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York
10036
General Motors Company
$500,000,000 Floating Rate Senior Notes due 2020
$750,000,000 4.200% Senior Notes due 2027
$1,000,000,000 5.150% Senior Notes due 2038
$750,000,000 5.400% Senior Notes due 2048
Ladies and Gentlemen:
We are
issuing this letter in our capacity as special counsel for General Motors Company, a Delaware corporation (the “
Company
”), in response to the requirements of Article V, paragraph (e) of the Underwriting Agreement, dated
August 2, 2017 (the “
Underwriting Agreement
”), by and among the Company and the several underwriters named in Schedule I thereto (collectively, the “
Underwriters
”), for whom Deutsche Bank Securities
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC are acting as representatives (the “
Representatives
”). The Underwriting Agreement relates to the offering (the
“
Offering
”) of $500,000,000 aggregate principal amount of the Company’s Floating Rate Senior Notes due 2020, $750,000,000 aggregate principal amount of the Company’s 4.200% Senior Notes due 2027, $1,000,000,000
aggregate principal amount of the Company’s 5.150% Senior Notes due 2038 and $750,000,000 aggregate principal amount of the Company’s 5.400% Senior
A-3-1
Notes due 2048 (collectively, the “
Securities
”) to be issued pursuant to the provisions of an Indenture, dated as of September 27, 2013, and a Fourth Supplemental
Indenture, dated as of the date hereof (collectively, the “
Indenture
”), between the Company and The Bank of New York Mellon, as trustee (the “
Trustee
”). Every capitalized term which is defined or given
a special meaning in the Underwriting Agreement and which is not given a different meaning in this letter has the same meaning whenever it is used in this letter as the meaning it is given in the Underwriting Agreement. The Indenture, Securities and
Underwriting Agreement are herein referred to as the “
Opinion Documents
.”
In connection with the preparation of
this letter, we have among other things read:
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(a)
|
the Registration Statement on Form
S-3
(Registration
No. 333-215924),
filed by the Company with the Securities and Exchange Commission
(the “
Commission
”) under the Securities Act of 1933, as amended (the “
Securities Act
”) (which registration statement, at the date of the Underwriting Agreement, including the documents incorporated by
reference therein and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act, is herein called the “
Registration Statement
”);
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(b)
|
the prospectus (including the documents incorporated by reference therein) of the Company, dated February 7, 2017 (the “
Basic Prospectus
”);
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(c)
|
the preliminary prospectus supplement of the Company, dated August 2, 2017 relating to the Offering (including the documents incorporated by reference therein), together with the Basic Prospectus that it
supplements and the Permitted Free Writing Prospectus listed on Schedule II to the Underwriting Agreement (collectively, the “
Disclosure Package
”);
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(d)
|
the Basic Prospectus, as supplemented by the prospectus supplement of the Company, dated August 2, 2017 relating to the Offering (including the documents incorporated by reference therein) (together, the
“
Prospectus
”);
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(e)
|
an executed copy of the Indenture;
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(f)
|
an executed copy of the Underwriting Agreement;
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(g)
|
a specimen of the Securities;
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(h)
|
a copy of the resolutions of the Board of Directors of the Company (the “
Board
”) adopted on February 6, 2017, approving (among other things) the filing of the Registration Statement;
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(i)
|
a copy of the resolutions of the Board adopted on February 25, 2017, approving (among other things) various offering matters;
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A-3-2
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(j)
|
a copy of the resolutions of the Finance Committee of the Board adopted on June 5, 2017, approving (among other things) various offering matters;
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(k)
|
a copy of the resolutions of the Board adopted on June 6, 2017, approving (among other things) various offering matters;
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(l)
|
a copy of the resolutions of a pricing committee, approving (among other things) various terms of the Securities;
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(m)
|
a copy of the Restated Certificate of Incorporation of the Company, certified as of July 31, 2017, by the Secretary of State of the State of Delaware (the “
Certificate of Incorporation
”);
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(n)
|
a copy of the Amended and Restated
By-Laws
of the Company (the “
Bylaws
”);
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(o)
|
copies of the documents filed pursuant to the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), and incorporated by reference in the documents referred to in paragraphs (a) through
(d), inclusive, above (the “
Incorporated Documents
”);
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(p)
|
the agreements listed as exhibits to (i) the Company’s annual report on Form
10-K
for the year ended December 31, 2016, filed with the Commission on
February 7, 2017, (ii) the Company’s quarterly report on Form
10-Q
for the quarterly period ended March 31, 2017, filed with the Commission on April 28, 2017, (iii) the Company’s
current report on Form
8-K
filed with the Commission on June 12, 2017 and (iv) the Company’s quarterly report on Form
10-Q
for the quarterly period ended
June 30, 2017, filed with the Commission on July 25, 2017 (the “
Material Agreements
”);
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(q)
|
a Certificate of Good Standing of the Company, dated July 31, 2017, issued by the Secretary of State of the State of Delaware (the “
Certificate of Good Standing
”); and
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(r)
|
copies of all certificates and other documents delivered today in connection with the consummation of the Offering.
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Subject to the assumptions, qualifications and limitations which are identified in this letter, we advise you that:
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1.
|
The Company is validly existing as a corporation and in good standing under the laws of the State of Delaware, with the corporate power to own its properties and to conduct its business as described in the Prospectus.
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2.
|
The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid, legal and binding agreement of the Company, enforceable against the Company under New York law in accordance with
its terms.
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A-3-3
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3.
|
The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
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4.
|
The Securities have been duly authorized by the Company and, when executed, authenticated and issued in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms.
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5.
|
No material authorization, consent or approval of, or registration or filing with, any governmental or public body or regulatory authority is required on the part of the Company for the sale of the Securities by the
Company in accordance with the Underwriting Agreement or the performance by the Company of its obligations under the Underwriting Agreement, the Indenture or the Securities, other than (i) the registration of the Securities under the Securities
Act, (ii) the qualification of the Indenture under the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act
”), (iii) compliance with any laws of any foreign jurisdiction or any Blue Sky Laws (defined below),
(iv) those required by the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“
FINRA
”) and (v) those that have already been obtained.
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6.
|
The sale of the Securities by the Company pursuant to the Underwriting Agreement and the Disclosure Package and the execution and delivery by the Company of, and the performance by the Company of its obligations under,
the Underwriting Agreement, the Indenture and the Securities do not and will not contravene any provision of applicable law (assuming compliance with all applicable Blue Sky Laws, the Securities Act and, in the case of the Indenture, the Trust
Indenture Act, and the rules and regulations of FINRA) or result in any violation by the Company of any of the terms or provisions of the Certificate of Incorporation or the Bylaws or of any Material Agreement, by which the Company is bound (except
that we express no opinion in this paragraph either (i) as to compliance with any disclosure requirement or any prohibition against fraud or misrepresentation or (ii) with respect to any violation, breach or default under any cross-default
provisions arising out of a default under any agreement which is not a Material Agreement or with respect to any financial covenants or tests (including any covenant to maintain a minimum amount of liquidity)).
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7.
|
The Registration Statement is effective under the Securities Act and, to our knowledge, after a review of the Stop Orders page of the Commission’s website (http://www.sec.gov/litigation/stoporders.shtml), no stop
order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission.
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8.
|
The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended.
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A-3-4
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9.
|
The statements under the captions “Description of Debt Securities” and “Description of the Notes” in the Registration Statement, the Disclosure Package and the Prospectus, in each case insofar as
such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present in all material respects the information set forth therein with respect to such legal matters, documents and proceedings.
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10.
|
The statements in each of the Registration Statement, the Disclosure Package and the Prospectus under the caption “Material U.S. Federal Tax Considerations,” insofar as such statements constitute a summary of
the United States federal tax laws referred to therein, are accurate and fairly summarize in all material respects the United States federal tax laws referred to therein.
|
In addition to the qualifications set forth above, the opinions and other matters in this letter are qualified in their entirety and subject
to the following:
A. We have assumed for purposes of this letter: that each document we have reviewed for purposes
of this letter is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine; that the Underwriting Agreement,
the Indenture and every other agreement we have examined for purposes of this letter constitutes a valid and binding obligation of each party to that document and that each such party has satisfied all legal requirements that are applicable to such
party to the extent necessary to entitle such party to enforce such agreement (except that we make no such assumption with respect to the Company); and that you have acted in good faith and without notice of any fact which has caused you to reach
any conclusion contrary to any of the advice provided in this letter.
B. In preparing this letter we have relied
without independent verification upon: (i) information contained in certificates obtained from governmental authorities; (ii) factual information represented to be true in the Underwriting Agreement, in the other documents specifically
identified at the beginning of this letter as having been read by us and in the certificates and other documents executed by the Company and delivered to you in connection with the consummation of the Offering; (iii) factual information
provided to us by the Company or its representatives; and (iv) factual information we have obtained from such other sources as we have deemed reasonable. We have assumed that there has been no relevant change or development between the dates as
of which the information cited in the preceding sentence was given and the date of this letter and that the information upon which we have relied is accurate and does not omit disclosures necessary to prevent such information from being misleading.
C. Whenever this letter provides advice about (or based upon) our knowledge of any particular information or about
any information which has or has not come to our attention such advice is based entirely on the conscious awareness at the time this letter is delivered on the date
A-3-5
it bears by the lawyers with Jenner & Block LLP at that time who spent substantial time representing the Company in connection with the Offering after consultation with such other
attorneys as they deem appropriate.
D. Our advice on every legal issue addressed in this letter is based
exclusively on the internal law of New York, the General Corporation Law of the State of Delaware or the federal law of the United States, and represents our opinion as to how that issue would be resolved were it to be considered by the highest
court in the jurisdiction that enacted such law. None of the opinions or other advice contained in this letter considers or covers: (i) any foreign or state securities laws or regulations (“
Blue Sky Laws
”); (ii) any
financial statements or schedules, the notes related thereto, or other financial or accounting data derived therefrom, set forth in (or omitted from) the Registration Statement, the Disclosure Package, the Prospectus or any Incorporated Document;
(iii) any rules and regulations of the Financial Industry Regulatory Authority, Inc. relating to the compensation of the Underwriters; (iv) compliance with fiduciary duty requirements; (v) the rules and regulations of the New York
Stock Exchange, Inc.; (vi) the Form
T-1
filed as an exhibit to the Registration Statement; (vii) any law or regulation relating to foreign, federal (except as provided in paragraph 10 above), state or
local taxation, any foreign, federal or state environmental laws or regulations, any local laws, any labor laws, the USA PATRIOT Act of 2001, as amended, any intellectual property laws, any antitrust laws or any laws or regulations relating to
zoning, land use or subdivision, the Employee Retirement Income Security Act of 1974, as amended, or any similar matters or (viii) the effect of the law of any jurisdiction (other than the State of New York) that limits the rate(s) of interest
that may be charged or collected. No opinion is expressed as to the effect the laws of any other jurisdiction might have upon the subject matter of any of the opinions expressed herein under conflict of law principles or otherwise. This letter does
not cover any other laws, statutes, governmental rules or regulations or decisions which in our experience are not usually considered for or covered by opinions like those contained in this letter or are not generally applicable to transactions of
the kind covered by the Underwriting Agreement.
E. Our opinions herein regarding the enforceability or effect of
the Opinion Documents (including their status as valid, legal or binding agreements or obligations of the Company) are qualified by (i) bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws relating to or affecting the
rights of creditors generally, including without limitation fraudulent conveyance or transfer laws, and preference and equitable subordination laws and principles; (ii) general principles of equity (whether considered in a proceeding at law or
in equity); and (iii) concepts of materiality, unconscionability, reasonableness, impracticability or impossibility of performance, good faith and fair dealing.
F. In addition, we express no opinion regarding (i) the submission of jurisdiction to the extent it relates to the
subject matter jurisdiction of any court, (ii) the enforceability of any waiver of a trial by jury or waiver of objection to venue or claim of an inconvenient forum with respect to proceedings, (iii) the waiver of any right to have service
of process made in the manner prescribed by applicable law, (iv) the appointment of any person as attorney in fact insofar as exercise of such power of attorney may be limited by public policy or limitations referred to elsewhere in this
opinion, (v) the enforceability, or compliance with applicable law,
A-3-6
regulation or ruling, of indemnification or contribution provisions in the Underwriting Agreement, the Indenture or the Securities, (vi) the ability of any person to receive the remedies of
specific performance, injunctive relief, liquidated damages or any similar remedy in any proceeding, (vii) any right to the appointment of a receiver, (viii) any right to obtain possession of any property or the exercise of self-help
remedies or other remedies without judicial process, (ix) any waiver or limitation concerning mitigation of damages, (x) the availability of the right of rescission, (xi) the enforceability of any right to receive interest on
interest, (xii) any provision that requires the payment of liquidated or punitive damages, prepayment penalties or premiums, late fees or default rates of interest to the extent that they are found to constitute unenforceable penalties or
forfeitures, (xiii) any provision that excludes money damages as a remedy, if injunctive relief is not available under applicable law, or that permits a party to pursue multiple remedies or that provides that all remedies are cumulative or
nonexclusive, or that violates laws relating to claim splitting or collateral estoppel, (xiv) any provision requiring the payment or reimbursement of attorneys’ fees other than “reasonable” attorneys’ fees under the
circumstances for which payment or reimbursement is sought, (xv) any provision in any document regarding severability, (xvi) any provision that would alter the terms or rights and obligations of the parties based on course of dealing,
course of performance or the like, or that provides that failure or delay in taking action may not constitute a waiver of rights or (xvii) any provision that requires that amendments or waivers be made in writing.
G. In rendering the opinions set forth in paragraph 1 above with respect to the existence and good standing of the
Company, we have relied solely on the Certificate of Good Standing. Such opinion is limited to the meaning ascribed to such certificate by such state agency and applicable law.
This letter speaks as of the time of its delivery on the date it bears. We do not assume any obligation to provide you with any subsequent
opinion or advice by reason of any fact about which we did not have knowledge at that time, by reason of any change subsequent to that time in any law, other governmental requirement or interpretation thereof covered by any of our opinions or
advice, or for any other reason.
This letter may be relied upon by you only for the purpose served by the provision in the Underwriting
Agreement cited in the initial paragraph of this letter in response to which it has been delivered. Without our written consent: (i) no person other than you may rely on this letter for any purpose; (ii) this letter may not be cited or
quoted in any financial statement, prospectus, private placement memorandum or other similar document; (iii) this letter may not be cited or quoted in any other document or communication which might encourage reliance upon this letter by any
person or for any purpose excluded by the restrictions in this paragraph; and (iv) copies of this letter may not be furnished to anyone for purposes of encouraging such reliance.
Very truly yours,
Jenner & Block LLP
A-3-7
EXHIBIT
A-4
10B-5
LETTER OF COUNSEL TO THE COMPANY
DEUTSCHE BANK SECURITIES INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. LLC
As
Representatives of the several Underwriters
named in Schedule I of the Underwriting Agreement referred to below
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY
10005
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New
York 10016
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York
10036
General Motors Company
$500,000,000 Floating Rate Senior Notes due 2020
$750,000,000 4.200% Senior Notes due 2027
$1,000,000,000 5.150% Senior Notes due 2038
$750,000,000 5.400% Senior Notes due 2048
Ladies and Gentlemen:
We are
issuing this letter in our capacity as special counsel for General Motors Company, a Delaware corporation (the “
Company
”), in response to the requirements of Article V, paragraph (e) of the Underwriting Agreement, dated
August 2, 2017 (the “
Underwriting Agreement
”), by and among the Company and the several underwriters named in Schedule I thereto (collectively, the “
Underwriters
”), for whom Deutsche Bank Securities
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC are acting as representatives (the “
Representatives
”). The Underwriting Agreement relates to the offering (the
“
Offering
”) of $500,000,000 aggregate principal amount of the Company’s Floating Rate Senior Notes due 2020, $750,000,000 aggregate principal amount of the Company’s 4.200% Senior
A-4-1
Notes due 2027, $1,000,000,000 aggregate principal amount of the Company’s 5.150% Senior Notes due 2038 and $750,000,000 aggregate principal amount of the Company’s 5.400% Senior Notes
due 2048 (collectively, the “
Securities
”) to be issued pursuant to the provisions of an Indenture, dated as of September 27, 2013, and a Fourth Supplemental Indenture, dated as of the date hereof (collectively, the
“
Indenture
”), between the Company and The Bank of New York Mellon, as trustee (the “
Trustee
”). Every capitalized term which is defined or given a special meaning in the Underwriting Agreement and which
is not given a different meaning in this letter has the same meaning whenever it is used in this letter as the meaning it is given in the Underwriting Agreement.
The Securities have been offered pursuant to:
|
|
(a)
|
the Registration Statement on Form
S-3
(Registration
No. 333-215924),
filed by the Company with the Securities and Exchange Commission
(the “
Commission
”) under the Securities Act of 1933, as amended (the “
Securities Act
”) (which registration statement, at the date of the Underwriting Agreement, including the documents incorporated by
reference therein and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act, is herein called the “
Registration Statement
”);
|
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|
(b)
|
the prospectus (including the documents incorporated by reference therein) of the Company, dated February 7, 2017 (the “
Basic Prospectus
”), as supplemented by the preliminary prospectus
supplement of the Company, dated August 2, 2017 relating to the Offering (including the documents incorporated by reference therein), together with the Permitted Free Writing Prospectus listed on Schedule II to the Underwriting Agreement
(collectively, the “
Disclosure Package
”); and
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|
(c)
|
the Basic Prospectus, as supplemented by the prospectus supplement of the Company, dated August 2, 2017 (the “
Prospectus Supplement
”) relating to the Offering (including the documents
incorporated by reference therein) (together, the “
Prospectus
”).
|
In acting as special counsel to
the Company in connection with the transactions described in the first paragraph above, we have participated in various conference calls with officers and representatives of the Company and its affiliates, as well as with representatives of the
Underwriters and their counsel, at which the contents of the Registration Statement, the Prospectus and the Disclosure Package were discussed and reviewed.
The purpose of our professional engagement was not to establish factual matters, and the preparation of the Registration Statement, the
Prospectus and the Disclosure Package involved many determinations of a wholly or partially
non-legal
character. We make no representation that we have independently verified the accuracy, completeness or
fairness of the Registration Statement, the Prospectus or the Disclosure Package or that the actions taken in connection with the preparation of the Registration Statement, the Prospectus or the Disclosure Package
A-4-2
(including the actions described in the immediately preceding paragraph) were sufficient to cause the Registration Statement, the Prospectus or the Disclosure Package to be accurate, complete or
fair. We are not passing upon or assuming responsibility for the accuracy, completeness or fairness of the statements included or incorporated by reference in or omitted from the Registration Statement, the Prospectus, or the Disclosure Package and
have made no independent check or verification thereof (except as set forth in paragraphs 9 and 10 of our opinion letter to you of even date herewith). Furthermore, while we have served as special counsel to the Company in the Offering, this firm
does not represent the Company in all aspects of its legal affairs. The Company and certain of its subsidiaries have internal legal departments and, in addition, regularly employ outside counsel other than this firm to advise them in connection with
legal matters. Hence, there may exist matters that could have a bearing on the affairs of the Company with respect to which we have not been consulted. However, subject to and on the basis of the foregoing and subject to the other limitations set
forth in this letter, we advise you that nothing has come to our attention in the course of such discussions and reviews that has caused us to believe that:
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|
(a)
|
the Registration Statement, as of the Effective Time (defined below), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
|
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|
(b)
|
the Disclosure Package, as of the Initial Sale Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or
|
|
|
(c)
|
the Prospectus, as of the date of the Prospectus Supplement and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading.
|
Subject to the
foregoing and the other limitations set forth in this letter, we further advise you that the Registration Statement, as of the Effective Time, and the Prospectus, as of the date of the Prospectus Supplement, each appears on its face to be
appropriately responsive, in all material respects, to the requirements as to form of the Securities Act and the rules and regulations promulgated thereunder.
We are not advising and we express no view or belief and make no statement with respect to (i) the financial statements and schedules and
notes thereto or other financial, numerical, accounting or quantitative information (or the assumptions with respect thereto) included in or incorporated by reference in (or omitted from) the Registration Statement or the exhibits thereto, the
Disclosure Package or the Prospectus; and (ii) the Trustee’s statement of eligibility on Form
T-1
filed as an exhibit to the Registration Statement.
A-4-3
In addition, we have made no inquiry into the delivery of any documents to any investor, and have
further assumed that the Disclosure Package was conveyed to investors at or prior to the Initial Sale Time. Finally, the advice provided herein is limited to those attorneys of this firm involved in the representation of the Company in connection
with the transactions referenced herein.
As used herein, “
Effective Time
” means the time of effectiveness of the
Registration Statement for purposes of Section 11 of the Securities Act, as such section applies to the Underwriters.
This letter
speaks as of the time of its delivery on the date it bears. We do not assume any obligation to provide you with any subsequent advice by reason of any fact about which we did not have knowledge at that time, by reason of any change subsequent to
that time in any law, other governmental requirement or interpretation thereof covered by any of our advice, or for any other reason.
This letter may be relied upon by you only for the purpose served by the provision in the Underwriting Agreement cited in the initial
paragraph of this letter in response to which it has been delivered. Without our written consent: (i) no person other than you may rely on this letter for any purpose; (ii) this letter may not be cited or quoted in any financial statement,
prospectus, private placement memorandum or other similar document; (iii) this letter may not be cited or quoted in any other document or communication which might encourage reliance upon this letter by any person or for any purpose excluded by
the restrictions in this paragraph; and (iv) copies of this letter may not be furnished to anyone for purposes of encouraging such reliance.
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Very truly yours,
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|
Jenner & Block LLP
|
A-4-4
EXHIBIT
B-1
OPINION OF COUNSEL FOR THE UNDERWRITERS
DEUTSCHE BANK SECURITIES INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. LLC
As
Representatives of the several Underwriters
named in Schedule I hereto
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY
10005
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York,
New York 10016
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York
10036
Ladies and Gentlemen:
We have acted
as counsel for you and the other several Underwriters named in Schedule I to the Underwriting Agreement dated August 2, 2017 (the “
Underwriting Agreement
”) with General Motors Company, a Delaware corporation (the
“
Company
”), under which you and such other Underwriters have severally agreed to purchase from the Company $500,000,000 aggregate principal amount of the Company’s Floating Rate Senior Notes due 2020 (the “
Floating Rate
Notes
”), $750,000,000 aggregate principal amount of the Company’s 4.200% Senior Notes due 2027 (the “
2027 Notes
”), $1,000,000,000 aggregate principal amount of the Company’s 5.150% Senior Notes due 2038 (the
“
2038 Notes
”) and $750,000,000 aggregate principal amount of the Company’s 5.400% Senior Notes due 2048 (the “
2048 Notes
” and, together with the Floating Rate Notes, the 2027 Notes and the 2038 Notes, the
“
Securities
”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of September 27, 2013 (the “
Base
Indenture
”) between the Company and The Bank of New York Mellon, as
trustee (the “
Trustee
”), as amended and supplemented by the supplemental indenture to be dated as of August 7, 2017 (the “
Fourth Supplemental Indenture
” and, together with the Base Indenture, the
“
Indenture
”) between the Company and the Trustee.
B-1-1
We have examined originals or copies of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
We have also reviewed
the Company’s registration statement on Form
S-3
(File
No. 333-215924)
(including the documents incorporated by reference therein (the “
Incorporated
Documents
”)) filed with the Securities and Exchange Commission (the “
Commission
”) pursuant to the provisions of the Securities Act of 1933, as amended (the “
Act
”), relating to the registration of securities
(the “
Shelf Securities
”) to be issued from time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated August 2, 2017 relating to the Securities, the free writing
prospectus set forth in Schedule II to the Underwriting Agreement relating to the Securities and the prospectus supplement dated August 2, 2017 relating to the Securities (the “
Prospectus Supplement
”). The registration statement
became effective under the Act and the Indenture qualified under the Trust Indenture Act of 1939, as amended, upon the filing of the registration statement with the Commission on February 7, 2017 pursuant to Rule 462(e). The registration
statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred
to as the “
Registration Statement
,” and the related prospectus (including the Incorporated Documents) dated February 7, 2017 relating to the Shelf Securities is hereinafter referred to as the “
Basic
Prospectus
.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests of
purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the “
Prospectus
.”
In rendering
the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to
authentic, complete originals, (iii) all documents filed with or submitted to the Commission through its Electronic Data Gathering, Analysis and Retrieval (“
EDGAR
”) system (except for required EDGAR formatting changes) conform
to the versions of such documents reviewed by us prior to such formatting, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so,
(vi) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company as to matters of fact in the documents that we reviewed were and
are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we are of the
opinion that:
|
1.
|
The Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general
applicability, provided that we express no opinion as to the validity, legally binding effect or
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B-1-2
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enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned
interest.
|
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2.
|
The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement,
will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable
principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Securities are to be issued, provided that we express no opinion as to the validity, legally binding effect or enforceability of any
provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.
|
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3.
|
The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
|
We have considered the statements included in the Prospectus under the captions “Description of Debt Securities,” “Description
of the Notes” and “Underwriting” insofar as they summarize provisions of the Indenture, the Securities and the Underwriting Agreement. In our opinion, such statements fairly summarize these provisions in all material respects.
In rendering the opinions in paragraphs (1) through (3) above, we have assumed that each party to the Indenture, the Underwriting
Agreement and the Securities (the “
Documents
”) has been duly incorporated and is validly existing and in good standing under the laws of the jurisdiction of its organization. In addition, we have assumed that (i) the execution,
delivery and performance by each party thereto of each Document to which it is a party, (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other
constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or
regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the
Company, and (ii) each Document (other than the Underwriting Agreement) is a valid, binding and enforceable agreement of each party thereto (other than as expressly covered above in respect of the Company).
We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the State of Delaware, except that we express no opinion as to any law, rule or regulation that is applicable to the Company, the Documents or such transactions solely because
such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
B-1-3
This opinion is rendered solely to you and the other several Underwriters in connection with the
Underwriting Agreement. This opinion may not be relied upon by you or the other several Underwriters for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to
any other person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell LLP
B-1-4
EXHIBIT
B-2
RULE
10B-5
STATEMENT OF COUNSEL FOR THE UNDERWRITERS
DEUTSCHE BANK SECURITIES INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. LLC
As
Representatives of the several Underwriters
named in Schedule I hereto
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, NY
10005
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York,
New York 10016
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York
10036
Ladies and Gentlemen:
We have acted
as counsel for you and the other several Underwriters named in Schedule I to the Underwriting Agreement dated August 2, 2017 (the “
Underwriting Agreement
”) with General Motors Company, a Delaware corporation (the
“
Company
”), under which you and such other Underwriters have severally agreed to purchase from the Company $500,000,000 aggregate principal amount of the Company’s Floating Rate Senior Notes due 2020 (the “
Floating Rate
Notes
”), $750,000,000 aggregate principal amount of the Company’s 4.200% Senior Notes due 2027 (the “
2027 Notes
”), $1,000,000,000 aggregate principal amount of the Company’s 5.150% Senior Notes due 2038 (the
“
2038 Notes
”) and $750,000,000 aggregate principal amount of the Company’s 5.400% Senior Notes due 2048 (the “
2048 Notes
” and, together with the Floating Rate Notes, the 2027 Notes and the 2038 Notes, the
“
Securities
”).
We have reviewed the Company’s registration statement on Form
S-3
(File
No. 333-215924)
(including the documents incorporated by reference therein (the “
Incorporated Documents
”)) filed with the Securities and
Exchange Commission (the “
Commission
”) pursuant to the provisions of the Securities Act of 1933, as amended (the “
Act
”), relating to the registration of securities (the “
Shelf Securities
”) to be
issued from time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated August 2, 2017 (the “
Preliminary Prospectus
B-1-5
Supplement
”) relating to the Securities, the free writing prospectus set forth in Schedule II to the Underwriting Agreement relating to the Securities and the prospectus supplement
dated August 2, 2017 relating to the Securities (the “
Prospectus Supplement
”). The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “
Registration Statement
,” and the related prospectus (including the Incorporated Documents) dated
February 7, 2017 relating to the Shelf Securities is hereinafter referred to as the “
Basic Prospectus
.” The Basic Prospectus, as supplemented by the Preliminary Prospectus Supplement, together with the free writing prospectus
set forth in Schedule II to the Underwriting Agreement for the Securities are hereinafter referred to as the “
Disclosure Package
.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm
sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the “
Prospectus
.”
We have, without independent inquiry or investigation, assumed that all documents filed with or submitted to the Commission through its
Electronic Data Gathering, Analysis and Retrieval (“
EDGAR
”) system (except for required EDGAR formatting changes) conform to the versions of such documents reviewed by us prior to such formatting.
The primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or quantitative
information. Furthermore, many determinations involved in the preparation of the Registration Statement, the Disclosure Package and the Prospectus are of a wholly or partially
non-legal
character or relate to
legal matters outside the scope of our opinion separately delivered to you today in respect of certain matters under the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of
Delaware. As a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, and we have not
ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent expressly set forth in our opinion letter separately delivered to you today as to statements
included in the Prospectus under the captions “Description of Debt Securities,” “Description of the Notes” and “Underwriting”). However, in the course of our acting as counsel to you in connection with the review of the
Registration Statement, the Disclosure Package and the Prospectus, we have generally reviewed and discussed with your representatives and with certain officers and employees of, and counsel and independent public accountants for, the Company the
information furnished, whether or not subject to our check and verification. We have also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants and oral and written statements of officers and other
representatives of the Company and others as to the existence and consequence of certain factual and other matters.
6
On the basis of the information gained in the course of the performance of the services rendered
above, but without independent check or verification except as stated above:
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(i)
|
the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission
thereunder; and
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(ii)
|
nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Securities:
|
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a.
|
on the date of the Underwriting Agreement, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading,
|
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b.
|
at 5:55 P.M. New York City time on August 2, 2017 the Disclosure Package contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
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c.
|
the Prospectus as of the date of the Underwriting Agreement or as of the date hereof contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading.
|
In providing this
letter to you and the other several Underwriters, we have not been called to pass upon, and we express no view regarding, the financial statements or financial schedules or other financial or accounting data included in the Registration Statement,
the Disclosure Package, the Prospectus or the Statement of Eligibility of the Trustee on Form
T-1.
In addition, we express no view as to the conveyance of the Disclosure Package or the information contained
therein to investors.
This letter is delivered solely to you and the other several Underwriters in connection with the Underwriting
Agreement. This letter may not be relied upon by you or the other several Underwriters for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to any other
person without our prior written consent.
Very truly yours,
Davis Polk & Wardwell LLP
7
Exhibit 4.1
GENERAL MOTORS COMPANY
and
THE BANK OF NEW
YORK MELLON,
as Trustee
FOURTH
SUPPLEMENTAL INDENTURE
Dated as of August 7, 2017
to
INDENTURE
Dated as of September 27, 2013
Floating Rate
Senior Notes due 2020
4.200% Senior Notes due 2027
5.150% Senior Notes due 2038
5.400% Senior Notes due 2048
TABLE OF CONTENTS
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PAGE
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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2
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Section 1.01.
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Definition of Terms
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2
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Section 1.02.
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Relationship with Base Indenture
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4
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ARTICLE 2 TERMS AND CONDITIONS OF NOTES
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4
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Section 2.01.
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Designation and Principal Amount
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4
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Section 2.02.
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Maturity
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5
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Section 2.03.
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Further Issues
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5
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Section 2.04.
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Payment
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5
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Section 2.05.
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Interest
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6
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Section 2.06.
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Authorized Denominations
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7
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Section 2.07.
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Redemption and Sinking Fund
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7
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Section 2.08.
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Ranking
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7
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Section 2.09.
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Appointments
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7
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Section 2.10.
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Waiver of Certain Covenants
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8
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Section 2.11.
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Defeasance
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8
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Section 2.12.
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Guarantees
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8
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ARTICLE 3 COVENANTS
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8
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Section 3.01.
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Additional Covenants
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8
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Section 3.02.
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Definitions
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9
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Section 3.03.
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Limitation on Liens
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10
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Section 3.04.
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Limitation on Sales and Lease-Backs
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11
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ARTICLE 4 FORM OF NOTES
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12
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Section 4.01.
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Form of Notes
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12
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Section 4.02.
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Global Securities
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13
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ARTICLE 5 ORIGINAL ISSUE OF NOTES
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15
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Section 5.01.
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Original Issue of Notes
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15
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ARTICLE 6 MISCELLANEOUS
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15
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Section 6.01.
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Ratification of Base Indenture
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15
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Section 6.02.
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Trustee Not Responsible for Recitals
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15
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Section 6.03.
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Governing Law
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16
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Section 6.04.
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Separability Clause
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16
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Section 6.05.
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Effect of Headings and Table of Contents
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16
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Section 6.06.
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Counterparts
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16
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Section 6.07.
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Calculation Agent
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16
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i
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EXHIBIT A-1 —
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Form of Floating Rate Notes
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A-1-1
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EXHIBIT A-2 —
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Form of 2027 Notes
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A-2-1
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EXHIBIT A-3 —
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Form of 2038 Notes
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A-3-1
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EXHIBIT A-4 —
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Form of 2048 Notes
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A-4-1
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ii
FOURTH SUPPLEMENTAL INDENTURE, dated as of August 7, 2017 (this “
Supplemental
Indenture
”), between General Motors Company, a corporation duly organized and existing under the laws of Delaware (herein called the “
Company
”), having its principal office at 300 Renaissance Center, Detroit,
Michigan 48265-3000, and The Bank of New York Mellon, a New York banking corporation, as trustee (herein called the “
Trustee
”).
RECITALS OF THE COMPANY
WHEREAS, the Company has executed and delivered the Indenture, dated as of September 27, 2013 (as supplemented prior to the date hereof,
the “
Base
Indenture
” and, together with this Supplemental Indenture, the “
Indenture
”), to the Trustee, to provide for the issuance of the Company’s debt securities (the
“
Securities
”), to be issued in one or more series;
WHEREAS, pursuant to the terms of the Base Indenture, the
Company desires to provide for the establishment of four new series of its Securities under the Base Indenture to be known as its “Floating Rate Senior Notes due 2020” (the “
Floating Rate Notes
”), “4.200%
Senior Notes due 2027” (the “
2027 Notes
”), “5.150% Senior Notes due 2038” (the “
2038 Notes
”) and “5.400% Senior Notes due 2048” (the “
2048
Notes
,
” and, together with the Floating Rate Notes, the 2027 Notes and the 2038 Notes, the “
Notes
”), respectively, the form and substance and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this Supplemental Indenture;
WHEREAS, the Board of Directors of the Company by duly adopted
resolutions has authorized, among other things, the issuance of the Notes and the execution and delivery of this Supplemental Indenture;
WHEREAS, this Supplemental Indenture is being entered into pursuant to the provisions of Section 901 of the Base Indenture;
WHEREAS, the Company hereby requests that the Trustee join with the Company in the execution and delivery of this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company, in accordance with its terms, and to
make the Notes, when executed and delivered by the Company and authenticated by the Trustee, the valid obligations of the Company, have been performed.
1
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the forms and terms of the Notes, the Company covenants and agrees with the Trustee, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definition of Terms
. Unless the context otherwise requires:
(a) the terms defined in this Supplemental Indenture (except as herein otherwise expressly provided or unless the
context of this Supplemental Indenture otherwise requires) for all purposes of this Supplemental Indenture and of any indenture supplemental hereto have the respective meanings specified in this Supplemental Indenture. All other terms used in this
Supplemental Indenture that are defined in the Base Indenture, either directly or by reference therein (except as herein otherwise expressly provided or unless the context of this Supplemental Indenture otherwise requires), have the respective
meanings assigned to such terms in the Base Indenture, as in force at the date of this Supplemental Indenture as originally executed;
provided
that any term that is defined in both the Base Indenture and this Supplemental Indenture shall have
the meaning assigned to such term in this Supplemental Indenture;
(b) the singular includes the plural, and vice
versa; and
(c) headings are for convenience of reference only and do not affect interpretation.
(d) The following definition shall be applicable in respect of all Notes for purposes of this Supplemental Indenture:
“
Business Day
” means each Monday, Tuesday, Wednesday, Thursday and Friday (i) that is not a day on which
banking institutions are authorized or obligated by law, regulation or executive order to close in the City of New York or the city in which the corporate trust office of the Trustee is located and (ii) that, in the case of (and solely in the
case of) the Floating Rate Notes, is also a London Business Day (as defined below).
(e) The following definitions
shall be applicable solely in respect of the Floating Rate Notes for purposes of this Supplemental Indenture:
“
Calculation
Agent
” means The Bank of New York Mellon, or any successor appointed from time to time by the Company to act as calculation agent.
“
Interest Determination Date
” means the second London Business Day immediately preceding August 7, 2017, in the
case of the Initial Interest Period, or thereafter the second London Business Day immediately preceding the applicable Interest Reset Date.
“
Initial Interest Reset Period
” (or “
Initial Interest Period
”) means the period from and
including August 7, 2017 to but excluding the first Interest Reset Date.
“
Interest Reset Date
” refers to
each day on which the interest rate on the Floating Rate Notes will be reset, which will be quarterly on February 7, May 7, August 7 and November 7, commencing on November 7, 2017; provided that if any Interest Reset Date
2
would otherwise be a day that is not a Business Day, the Interest Reset Date will be postponed to the immediately succeeding day that is a Business Day, except that if that Business Day is in the
immediately succeeding calendar month, the Interest Reset Date shall be the immediately preceding Business Day.
“
Interest
Reset Period
” (or “
Interest Period
”) means the period from and including an Interest Reset Date to but excluding the immediately succeeding Interest Reset Date; provided that the final Interest Reset Period for
the Floating Rate Notes shall be the period from and including the Interest Reset Date immediately preceding the maturity date of the Floating Rate Notes to but excluding the maturity date.
“
London Business Day
” means a day on which dealings in deposits in U.S. dollars are transacted in the London interbank
market.
“
Three-Month LIBOR
” will be determined by the Calculation Agent in accordance with the following
provisions:
(i) Three-Month LIBOR will be the rate for deposits in U.S. dollars for the
3-month
period which appears on Reuters LIBOR 01 (as defined below) at approximately 11:00 a.m., London time, on the applicable Interest Determination Date. “
Reuters
LIBOR 01
” means the
display designated on page LIBOR 01 on the Reuters Service (or such other page as may replace the LIBOR 01 page on that service or any successor service for the purpose of displaying London interbank offered rates for U.S. dollar deposits of major
banks). If no rate appears on Reuters LIBOR 01, Three-Month LIBOR for such Interest Determination Date will be determined in accordance with the provisions of paragraph (ii) below.
(ii) With respect to an Interest Determination Date on which no rate appears on Reuters LIBOR 01 as of approximately
11:00 a.m., London time, on such Interest Determination Date, the Company shall request the principal London offices of each of four major reference banks in the London interbank market selected by the Company to provide the Calculation Agent
with a quotation of the rate at which deposits of U.S. dollars having a three-month maturity, commencing on the second London Business Day immediately following such Interest Determination Date, are offered by it to prime banks in the London
interbank market as of approximately 11:00 a.m., London time, on such Interest Determination Date in a principal amount equal to an amount of not less than U.S. $1,000,000 that is representative for a single transaction in such market at such
time. If at least two such quotations are provided, Three-Month LIBOR for such Interest Determination Date will be the arithmetic mean of such quotations. If fewer than two quotations are provided, Three Month LIBOR for such Interest Determination
Date will be the arithmetic mean of the rates quoted as of approximately 11:00 a.m., New York City time, on such Interest Determination Date by three major banks selected by the Company for loans in U.S. dollars to leading European banks having a
three-month maturity commencing on the second London Business Day immediately following such Interest Determination Date and in a principal amount equal to an amount of not less than U.S. $1,000,000 that is representative for a single transaction in
such market at such time; provided, however, that if the banks selected as aforesaid by the Company
are not
3
quoting such rates as mentioned in this sentence, Three-Month LIBOR for such Interest Determination Date will be Three Month LIBOR determined with respect to the immediately preceding Interest
Determination Date.
All percentages resulting from any of the above calculations will be rounded, if necessary, to the nearest one
hundred thousandth of a percentage point, with five
one-millionths
of a percentage point being rounded upwards (e.g., 1.986865% (or 0.01986865) being rounded to 1.98687% (or 0.0198687)) and all dollar amounts
used in or resulting from such calculations will be rounded to the nearest cent (with
one-half
cent being rounded upwards).
Section 1.02.
Relationship with
Base
Indenture
. The terms and provisions contained in the
Base Indenture will constitute, and are hereby expressly made, a part of this Supplemental Indenture. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this Supplemental Indenture, the provisions of
this Supplemental Indenture will govern and be controlling (including for all purposes of Section 113 of the Base Indenture in respect of the Notes).
ARTICLE 2
TERMS AND CONDITIONS OF
NOTES
Section 2.01.
Designation and Principal Amount
.
(a) There is hereby authorized and established a series of Securities under the Base Indenture, designated as the
“Floating Rate Senior Notes due 2020,” which is initially limited in aggregate principal amount to $500,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of, other Floating Rate Notes pursuant to
Section 304, 305, 306, 311, 906 or 1106 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered).
(b) There is hereby authorized and established a series of Securities under the Base Indenture, designated as the
“4.200% Senior Notes due 2027,” which is initially limited in aggregate principal amount to $750,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of, other 2027 Notes pursuant to Section 304, 305, 306,
311, 906 or 1106 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered).
(c) There is hereby authorized and established a series of Securities under the Base Indenture, designated as the
“5.150% Senior Notes due 2038,” which is initially limited in aggregate principal amount to $1,000,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of, other 2038 Notes pursuant to Section 304, 305,
306, 311, 906 or 1106 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered).
4
(d) There is hereby authorized and established a series of Securities
under the Base Indenture, designated as the “5.400% Senior Notes due 2048,” which is initially limited in aggregate principal amount to $750,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of, other 2048
Notes pursuant to Section 304, 305, 306, 311, 906 or 1106 of the Base Indenture and except for any Notes which, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered).
Section 2.02.
Maturity
.
(a) The Stated Maturity of principal of the Floating Rate Notes shall be August 7, 2020.
(b) The Stated Maturity of principal of the 2027 Notes shall be October 1, 2027.
(c) The Stated Maturity of principal of the 2038 Notes shall be April 1, 2038.
(d) The Stated Maturity of principal of the 2048 Notes shall be April 1, 2048.
Section 2.03.
Further Issues
. The Company may at any time and from time to time, without the consent of the
Holders of the Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes, increase the principal amount of the Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes that may be issued under the Indenture and issue additional Floating Rate Notes,
2027 Notes, 2038 Notes or 2048 Notes;
provided that
if the additional Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes are not fungible with the then-outstanding Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes for U.S.
federal income tax purposes, respectively, the additional Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes shall have separate CUSIP numbers. Any such additional Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes shall have the same
ranking, interest rate, maturity date and other terms as the Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes, respectively, but may be offered at a different offering price or have a different issue date, initial interest accrual date or
initial interest payment date than such Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes, respectively (and, in the case of any such additional Floating Rate Notes, may have a different initial Interest Reset Date, Initial Interest Reset
Period or initial Interest Determination Date than such Floating Rate Notes). Any such additional Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes, together with the Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes herein provided
for, shall each respectively constitute a single series of Securities under the Base Indenture.
Section 2.04.
Payment
. Principal of and interest on the Notes shall be payable in U.S. dollars in
immediately available funds at the office or agency of the Company maintained for such purpose, which shall initially be at the Corporate Trust Office of the Trustee;
provided
,
however
, that payment of interest may be made at the
option of the Company through the Paying Agent by check mailed to the Holder at such address as shall appear in the Security Register at the close of business on the Regular Record Date
5
for such Holder or by wire transfer to an account appropriately designated by the Holder to the Company and the Trustee; and
provided
,
further
, that the Company through the Paying
Agent shall pay principal of and interest on the Notes in the form of Global Securities registered in the name of or held by The Depository Trust Company (“
DTC
”) or such other Depositary as may from time to time be designated
pursuant to the terms of the Indenture, or its respective nominee, by wire transfer in immediately available funds to such Depositary or its nominee, as the case may be, as the registered holder of such Notes in the form of Global Securities.
Section 2.05.
Interest
.
(a) The Floating Rate Notes shall bear interest (computed on the basis of the actual number of days elapsed over a
360-day
year) from August 7, 2017 at a floating rate per annum, reset quarterly on each Interest Reset Date, equal to Three-Month LIBOR, as determined as of the applicable Interest Determination Date for the
Initial Interest Period and for each subsequent Interest Period, plus 0.800%, as calculated by the Calculation Agent, payable quarterly in arrears. Interest payable on each Interest Payment Date shall include interest accrued from August 7,
2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for. The Interest Payment Dates on which such interest shall be payable are February 7, May 7, August 7 and November 7,
commencing on November 7, 2017, but if any Interest Payment Date (other than the maturity date of the Floating Rate Notes) is not a Business Day, such Interest Payment Date will be postponed to the immediately succeeding day that is a Business
Day, except that if that Business Day is in the immediately succeeding calendar month, the Interest Payment Date shall be the immediately preceding Business Day. If the maturity date of the Floating Rate Notes falls on a day that is not a Business
Day, the payment of principal and interest will be made on the next succeeding Business Day, and no interest on such payment will accrue for the period from and after the maturity date of the Floating Rate Notes. The Regular Record Date for the
interest payable on any Interest Payment Date is the close of business on the date (whether or not a Business Day) that is fifteen (15) calendar days prior to the relevant Interest Payment Date.
(b) The 2027 Notes shall bear interest (computed on the basis of a
360-day
year
consisting of twelve
30-day
months) from August 7, 2017 at the rate of 4.200% per annum, payable semi-annually in arrears. Interest payable on each Interest Payment Date shall include interest accrued from
August 7, 2017, or from the most recent Interest Payment Date to which interest has been paid or duly provided for. The Interest Payment Dates on which such interest shall be payable are April 1 and October 1, commencing on April 1,
2018; and the Regular Record Date for the interest payable on any Interest Payment Date is the close of business on the March 15 or September 15 (whether or not a Business Day), as the case may be, next preceding the relevant Interest
Payment Date.
(c) The 2038 Notes shall bear interest (computed on the basis of a
360-day
year consisting of twelve
30-day
months) from August 7, 2017 at the rate of 5.150% per annum, payable semi-annually in arrears. Interest payable on each Interest
Payment Date shall include interest accrued from August 7, 2017, or from the most recent Interest Payment Date to which interest has been paid or duly provided for. The Interest Payment
6
Dates on which such interest shall be payable are April 1 and October 1, commencing on April 1, 2018; and the Regular Record Date for the interest payable on any Interest Payment
Date is the close of business on the March 15 or September 15 (whether or not a Business Day), as the case may be, next preceding the relevant Interest Payment Date.
(d) The 2048 Notes shall bear interest (computed on the basis of a
360-day
year
consisting of twelve
30-day
months) from August 7, 2017 at the rate of 5.400% per annum, payable semi-annually in arrears. Interest payable on each Interest Payment Date shall include interest accrued from
August 7, 2017, or from the most recent Interest Payment Date to which interest has been paid or duly provided for. The Interest Payment Dates on which such interest shall be payable are April 1 and October 1, commencing on April 1,
2018; and the Regular Record Date for the interest payable on any Interest Payment Date is the close of business on the March 15 or September 15 (whether or not a Business Day), as the case may be, next preceding the relevant Interest
Payment Date.
Section 2.06.
Authorized Denominations
. Each of the Floating Rate Notes, 2027 Notes,
2038 Notes and 2048 Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 2.07.
Redemption and Sinking Fund
.
(a) The Floating Rate Notes shall not be redeemable at the option of the Company. The Floating Rate Notes shall not be
redeemable at the option of the Holders. The Floating Rate Notes shall not be entitled to the benefit of any sinking fund.
(b) The 2027 Notes shall not be redeemable at the option of the Company except as set forth in Section 2 of the
2027 Notes. The 2027 Notes shall not be redeemable at the option of the Holders. The 2027 Notes shall not be entitled to the benefit of any sinking fund.
(c) The 2038 Notes shall not be redeemable at the option of the Company except as set forth in Section 2 of the
2038 Notes. The 2038 Notes shall not be redeemable at the option of the Holders. The 2038 Notes shall not be entitled to the benefit of any sinking fund.
(d) The 2048 Notes shall not be redeemable at the option of the Company except as set forth in Section 2 of the
2048 Notes. The 2048 Notes shall not be redeemable at the option of the Holders. The 2048 Notes shall not be entitled to the benefit of any sinking fund.
Section 2.08.
Ranking
. Each of the Floating Rate Notes, 2027 Notes, 2038 Notes and 2048 Notes shall be
senior unsecured debt securities of the Company, ranking equally with the Company’s other unsecured and unsubordinated indebtedness.
Section 2.09.
Appointments
. The Trustee shall be the initial Security Registrar and initial Paying Agent
for each of the Floating Rate Notes, 2027 Notes, 2038 Notes and 2048 Notes. The Trustee shall be the initial Calculation Agent for the Floating Rate Notes.
7
Section 2.10.
Waiver of Certain Covenants
. Without in any way
limiting the applicability of Section 1006 of the Base Indenture with respect to the Notes, the Company may, with respect to the Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes, also omit in a particular instance to comply with any
term, provision or condition set forth in Article 3 of this Supplemental Indenture, if, before or after the time for such compliance, the Holders of not less than a majority in aggregate principal amount of the Floating Rate Notes, 2027 Notes, 2038
Notes or 2048 Notes, respectively, at the time Outstanding shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly waived, and, until such waiver becomes effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect. Nothing in this Section 2.10 shall affect the Company’s requirement to comply with Section 513 of the Base Indenture with respect to waivers of past defaults under the Base Indenture.
Section 2.11.
Defeasance
. The Company may elect, at its option at any time, pursuant to Section 402 of
the Base Indenture, to have Section 403 or Section 404 in the Base Indenture, or both, apply to the Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes, respectively, or any principal amount thereof. Without in any way limiting the
applicability of Section 404 of the Base Indenture with respect to the Notes, upon the Company’s exercise of its option to have Section 404 of the Base Indenture applied to all of the Outstanding Floating Rate Notes, 2027 Notes, 2038
Notes or 2048 Notes, (1) the Company shall also be deemed to be released from and may omit to comply with its obligations under the covenants contained in Article 3 of this Supplemental Indenture with respect to the Floating Rate Notes, 2027
Notes, 2038 Notes or 2048 Notes, respectively, and (2) the failure to comply with any such obligation, covenant, restriction, term or other provision shall not constitute (and shall be deemed not to be or result in) an Event of Default under
Section 501(4) or Section 501(7) of the Base Indenture, in each case with respect to the Floating Rate Notes, 2027 Notes, 2038 Notes or 2048 Notes, respectively, on and after the date the conditions set forth in Section 405 of the
Base Indenture are satisfied.
Section 2.12.
Guarantees
. None of the Floating Rate Notes, 2027 Notes,
2038 Notes or 2048 Notes shall be guaranteed by any Person.
ARTICLE 3
COVENANTS
Section 3.01.
Additional Covenants
. In addition to the covenants stated in Article Ten of the Base
Indenture, the Notes will be subject to the covenants set forth in Sections 3.03 and 3.04 below. For the avoidance of doubt, the covenants set forth in Sections 3.03 and 3.04 below are solely for the benefit of the Holders of the Floating Rate
Notes, 2027 Notes, 2038 Notes and 2048 Notes, and are not for the benefit of, or applicable to, any other debt securities issued under the Base Indenture or any other supplemental indenture.
8
Section 3.02.
Definitions
. The following definitions shall be
applicable to Sections 3.03 and 3.04 below:
“
Attributable Debt
” means, at the time of determination as to any
lease, the present value (discounted at the actual rate, if stated, or, if no rate is stated, the implicit rate of interest of such lease transaction as determined by the Company’s Chairman, President or any Vice Chairman, the Company’s
Chief Financial Officer, any Vice President, the Company’s Treasurer or any Assistant Treasurer), calculated using the interval of scheduled rental payments under such lease, of the obligation of the lessee for net rental payments during the
remaining term of such lease (excluding any subsequent renewal or other extension options held by the lessee). The term “
net rental payments
” means, with respect to any lease for any period, the sum of the rental and other
payments required to be paid in such period by the lessee thereunder, but not including, however, any amounts required to be paid by such lessee (whether or not designated as rental or additional rental) on account of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar charges required to be paid by such lessee thereunder or any amounts required to be paid by such lessee thereunder contingent upon the amount of sales, earnings or profits or of
maintenance and repairs, insurance, taxes, assessments, water rates, indemnities or similar charges;
provided
,
however
, that, in the case of any lease which is terminable by the lessee upon the payment of a penalty in an amount which
is less than the total discounted net rental payments required to be paid from the later of the first date upon which such lease may be so terminated and the date of the determination of net rental payments, “net rental payments” shall
include the then current amount of such penalty from the later of such two dates, and shall exclude the rental payments relating to the remaining period of the lease commencing with the later of such two dates.
“
Consolidated Tangible Assets
” means, on the date of determination, total assets less goodwill and other intangible
assets of the Company and its consolidated subsidiaries, in each case as set forth on the most recently available consolidated balance sheet of the Company and its subsidiaries in accordance with generally accepted accounting principles in the
United States.
“
Debt
” means notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed.
“
Manufacturing Subsidiary
” means any Subsidiary (A) substantially all the property of which is
located within the continental United States of America, (B) which owns a Principal Domestic Manufacturing Property and (C) in which the Company’s investment, direct or indirect and whether in the form of equity, debt, advances or
otherwise, is in excess of $2,500,000,000 as shown on the consolidated books of the Company as of the end of the fiscal year immediately preceding the date of determination;
provided
,
however
, that “Manufacturing Subsidiary”
shall not include any Subsidiary which is principally engaged in leasing or in financing installment receivables or otherwise providing financial or insurance services to the Company or others or which is principally engaged in financing the
Company’s operations outside the continental United States of America.
9
“
Mortgage
” means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar encumbrance.
“
Principal Domestic Manufacturing
Property
” means all real property located within the continental United States of America and constituting part of any manufacturing plant or facility owned and operated by the Company or any Manufacturing Subsidiary, together with such
manufacturing plant or facility (including all plumbing, electrical, ventilating, heating, cooling, lighting and other utility systems, ducts and pipes attached to or constituting a part thereof, but excluding all trade fixtures (unless such trade
fixtures are attached to the manufacturing plant or facility in a manner that does not permit removal therefrom without causing substantial damage thereto), business machinery, equipment, motorized vehicles, tools, supplies and materials, security
systems, cameras, inventory and other personal property and materials), unless, in the opinion of the Board of Directors of the Company, such manufacturing plant or facility is not of material importance to the total business conducted by the
Company and its consolidated affiliates as an entity.
“
Subsidiary
” means any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any contingency) is at the time owned by the Company, or by one or more Subsidiaries, or by the Company and one or more Subsidiaries.
Section 3.03.
Limitation on Liens
.
For the benefit of the Notes, the Company will not, nor will the
Company permit any Manufacturing Subsidiary to, issue or assume any Debt secured by a Mortgage upon any Principal Domestic Manufacturing Property of the Company or any Manufacturing Subsidiary or upon any shares of stock or indebtedness of any
Manufacturing Subsidiary (whether such Principal Domestic Manufacturing Property, shares of stock or indebtedness are now owned or hereafter acquired) without in any such case effectively providing concurrently with the issuance or assumption of any
such Debt that the Notes (together with, if the Company shall so determine, any other indebtedness of the Company or such Manufacturing Subsidiary ranking equally with the Notes and then existing or thereafter created) shall be secured equally and
ratably with such Debt, unless the aggregate amount of Debt issued or assumed and so secured by Mortgages, together with all other Debt of the Company and its Manufacturing Subsidiaries which (if originally issued or assumed at such time) would
otherwise be subject to the foregoing restrictions, but not including Debt permitted to be secured under clauses (i) through (vii) of the immediately following paragraph, does not at the time exceed 15% of the Consolidated Tangible Assets of
the Company.
The above restrictions shall not apply to Debt secured by:
(i) Mortgages on property, shares of stock or indebtedness of any corporation existing at the time such
corporation becomes a Manufacturing Subsidiary;
10
(ii) Mortgages on property existing at the time of
acquisition thereof or to secure the payment of all or any part of the purchase or construction price of property, or to secure Debt incurred for the purpose of financing all or part of the purchase or construction price of property or the cost of
improvements on property, which Debt is incurred prior to, at the time of, or within 180 days after the later of such acquisition or completion of such improvements or construction or commencement of full operation of such property;
(iii) Mortgages securing Debt of a Manufacturing Subsidiary owing to the Company or to another
Manufacturing Subsidiary;
(iv) Mortgages on property of a corporation existing at the time such
corporation is merged or consolidated with the Company or a Manufacturing Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation as an entirety or substantially as an entirety to the Company or a
Manufacturing Subsidiary;
(v) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute or to secure any indebtedness incurred or guaranteed for the purpose of financing all or any part of the purchase price or the cost of construction or improvement of the property subject to such
Mortgages (including, without limitation, Mortgages incurred in connection with pollution control, industrial revenue or similar financing);
(vi) Mortgages existing on August 7, 2017; or
(vii) any extension, renewal or replacement (or successive extensions, renewals or replacements) in
whole or in part of any Mortgage referred to in the foregoing clauses (i) to (vi) or in this clause (vii);
provided
,
however
, that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the Mortgage so extended, renewed or replaced (plus improvements on such
property).
Section 3.04.
Limitation on Sales and Lease-Backs
. For the benefit of the Notes, the
Company will not, nor will the Company permit any Manufacturing Subsidiary to, enter into any arrangement with any person providing for the leasing by the Company or any Manufacturing Subsidiary of any Principal Domestic Manufacturing Property owned
by the Company or any Manufacturing Subsidiary on August 7, 2017 (except for temporary leases for a term of not more than five years and except for leases between the Company and a Manufacturing Subsidiary or between Manufacturing
Subsidiaries), which property has been or is to be sold or transferred by the Company or such Manufacturing Subsidiary to such person, unless either:
11
(i) the Company or such Manufacturing Subsidiary would be
entitled, pursuant to the provisions of Section 3.03 above, to issue, assume, extend, renew or replace Debt secured by a Mortgage upon such property at least equal in amount to the Attributable Debt in respect of such arrangement without
equally and ratably securing the Notes;
provided
,
however
, that from and after the date on which such arrangement becomes effective the Attributable Debt in respect of such arrangement shall be deemed for all purposes under
Section 3.03 above and this Section 3.04 to be Debt subject to the provisions of Section 3.03 above (which provisions include the exceptions set forth in clauses (i) through (vii) of Section 3.03 above); or
(ii) the Company shall apply an amount in cash equal to the Attributable Debt in respect of such
arrangement within 180 days of the effective date of any such arrangement to either (or a combination) of (i) the retirement (other than any mandatory retirement or by way of payment at maturity) of Debt of ours or any Manufacturing Subsidiary
(other than Debt owned by the Company or any Manufacturing Subsidiary) which by its terms matures at or is extendible or renewable at the option of the obligor to a date more than twelve months after the date of the creation of such Debt, or
(ii) the purchase, construction or development by the Company or a Manufacturing Subsidiary of other comparable property.
ARTICLE 4
FORM OF NOTES
Section 4.01.
Form of Notes
.
(a) The Floating Rate Notes and the Trustee’s certificate of authentication thereon shall be substantially in the
form set forth in
Exhibit
A-1
hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Base Indenture and this Supplemental Indenture,
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may,
consistent herewith, be determined by the signatory authorized by the Company to execute such Floating Rate Notes, as evidenced by the execution thereof. All Floating Rate Notes shall be in fully registered form.
(b) The 2027 Notes and the Trustee’s certificate of authentication thereon shall be substantially in the form set
forth in
Exhibit A-2
hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Base Indenture and this Supplemental Indenture, and
may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may,
consistent herewith, be determined by the signatory authorized by the Company to execute such 2027 Notes, as evidenced by the execution thereof. All 2027 Notes shall be in fully registered form.
12
(c) The 2038 Notes and the Trustee’s certificate of authentication
thereon shall be substantially in the form set forth in
Exhibit A-3
hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Base
Indenture and this Supplemental Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities
exchange or Depositary therefor or as may, consistent herewith, be determined by the signatory authorized by the Company to execute such 2038 Notes, as evidenced by the execution thereof. All 2038 Notes shall be in fully registered form.
(d) The 2048 Notes and the Trustee’s certificate of authentication thereon shall be substantially in the form set
forth in
Exhibit A-4
hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Base Indenture and this Supplemental Indenture, and
may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may,
consistent herewith, be determined by the signatory authorized by the Company to execute such 2048 Notes, as evidenced by the execution thereof. All 2048 Notes shall be in fully registered form.
Section 4.02.
Global Securities
.
Upon their original issuance, the Floating Rate Notes, 2027 Notes,
2038 Notes and 2048 Notes shall each be issued in the form of one or more permanent global notes in definitive, fully registered form without interest coupons (the “
Global Securities
”) and shall constitute “Global
Securities” under the Base Indenture. Each such Global Security shall be duly executed by the Company, shall be authenticated and delivered by the Trustee and shall be initially registered in the name of Cede & Co. as nominee for the
Depositary. DTC shall be the initial Depositary for the Floating Rate Notes, 2027 Notes, 2038 Notes and 2048 Notes upon their original issuance. Beneficial interests in the Global Securities will be shown on, and transfers will only be made through,
the records maintained by the Depositary, its members or its direct or indirect participants, including Euroclear and Clearstream (collectively, the “
Agent Members
”).
The Agent Members shall have no rights under the Base Indenture or the Supplemental Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the Global Securities. The Depositary or its nominee may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global
Securities for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization
furnished by the Depositary (or its nominee), or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
(a) (i) Transfers of Global Securities shall be limited to transfer in whole, but not in part, to the Depositary, its
successors or their respective nominees, except as provided in the Base Indenture. Interests of beneficial owners in the Global Securities
13
may be transferred or exchanged in the name of any Person other than the Depositary or its nominee only in accordance with the applicable rules and procedures of the Depositary and the applicable
provisions of Section 311 of the Base Indenture. Global Securities also may be exchanged or replaced, in whole or in part, as provided in Sections 304 and 306 of the Base Indenture. A Global Security may not be exchanged for another Note other
than as provided in this Section 4.02(b) or the Base Indenture.
(ii) At such time as all
beneficial interests in a particular Global Security have been exchanged for Notes that are issued, under the circumstances permitted under the Base Indenture and this Supplemental Indenture, in the name of a Person other than the Depositary or its
nominee (a “
Definitive Security
”) or a particular Global Security has been redeemed, repurchased or cancelled in whole and not in part, each such Global Security shall be returned to or retained and cancelled by the Trustee in
accordance with Section 309 of the Base Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Security is being exchanged for or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security of the same series or for Definitive Securities, or is being surrendered by the Company for cancellation after redemption, repurchase or other acquisition by the Company, the principal amount of Notes
represented by such Global Security shall be reduced accordingly and an endorsement shall be made on such Global Security by the Security Registrar or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security of the same series, such other Global Security shall be increased accordingly and an
endorsement shall be made on such other Global Security by the Security Registrar or by the Depositary at the direction of the Trustee to reflect such increase.
(b) Each Note certificate evidencing the Global Securities shall bear a legend in substantially the following form
(each defined term in the legend being defined as such for purposes of the legend only):
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
14
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.”
ARTICLE 5
ORIGINAL ISSUE OF NOTES
Section 5.01.
Original Issue of Notes
.
(a) The Floating Rate Notes may, upon execution of this Supplemental Indenture, be executed by the Company and delivered
to the Trustee for authentication, and the Trustee shall, upon Company Order, authenticate and deliver such Floating Rate Notes as in such Company Order provided.
(b) The 2027 Notes may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall, upon Company Order, authenticate and deliver such 2027 Notes as in such Company Order provided.
(c) The 2038 Notes may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall, upon Company Order, authenticate and deliver such 2038 Notes as in such Company Order provided.
(d) The 2048 Notes may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall, upon Company Order, authenticate and deliver such 2048 Notes as in such Company Order provided.
ARTICLE 6
MISCELLANEOUS
Section 6.01.
Ratification of
Base
Indenture
. The Base Indenture, as supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided;
provided, however
, that the provisions
of this Supplemental Indenture shall apply solely with respect to the Notes and not to any other series of Securities issued under the Base Indenture.
Section 6.02.
Trustee Not Responsible for Recitals
. The recitals herein contained are made solely by the
Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity, sufficiency or adequacy of this Supplemental Indenture.
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Section 6.03.
Governing Law
. This Supplemental Indenture and
the Notes shall be governed by and construed in accordance with the law of the State of New York in the United States. EACH OF THE COMPANY, THE TRUSTEE AND EACH HOLDER OF THE NOTES BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 6.04.
Separability Clause
. In case any provision in the Base Indenture, this Supplemental Indenture
or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 6.05.
Effect of Headings and Table of Contents
. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 6.06.
Counterparts
. This Supplemental Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or electronic
format (i.e., “pdf” or “tif”) transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or electronic format (i.e., “pdf” or “tif”) shall be deemed to be their original signatures for all purposes.
Section 6.07.
Calculation Agent
.
All calculations made by the Calculation Agent shall, in the
absence of manifest error, be conclusive for all purposes and binding on the Company, the trustee under the Indenture and the Holders of the Floating Rate Notes. So long as Three-Month LIBOR is required to be determined with respect to the Floating
Rate Notes, there shall at all times be a Calculation Agent. In the event that any then-acting Calculation Agent shall be unable or unwilling to act, or that such Calculation Agent shall fail duly to establish the Three-Month LIBOR for any Interest
Period, or that the Company proposes to remove such Calculation Agent, the Company may appoint the Company or any Person which is a bank, trust company, investment banking firm or other financial institution to act as the Calculation Agent. The
provisions of this Section 6.07 shall apply solely with respect to the Floating Rate Notes and are not applicable to the 2027 Notes, the 2038 Notes or the 2048 Notes.
[
Signature page follows
]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly
executed as of the date first above written.
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GENERAL MOTORS COMPANY
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By:
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/s/ Charles K. Stevens, III
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Name:
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Charles K. Stevens, III
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Title:
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Executive Vice President &
Chief
Financial Officer
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[
Company Signature Page to Fourth Supplemental Indenture
]
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THE BANK OF NEW YORK MELLON,
as
Trustee
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By:
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/s/ Laurence J. O’Brien
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Name:
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Laurence J. O’Brien
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Title:
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Vice President
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[
Trustee Signature Page to Fourth Supplemental Indenture
]
EXHIBIT
A-1
[FORM OF FLOATING RATE SENIOR NOTE DUE 2020]
[Global Security Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
A-1-1
GENERAL MOTORS COMPANY
Floating Rate Senior Notes due 2020
CUSIP No.: 37045VAM2
ISIN No.: US37045VAM28
GENERAL MOTORS COMPANY, a corporation duly organized and existing under the laws of Delaware (the
“
Company
,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of
$[ ] ([ ] DOLLARS)[, as revised by the Schedule of Increases and Decreases attached hereto,]
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on August 7, 2020, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly in arrears, at a
floating rate per annum, reset quarterly on each Interest Reset Date, equal to Three-Month LIBOR, as determined as of the applicable Interest Determination Date for the Initial Interest Period and for each subsequent Interest Period, plus 0.800%, as
calculated by the Calculation Agent, until the principal hereof is paid or made available for payment. The Interest Payment Dates on which such interest shall be payable are February 7, May 7, August 7 and November 7, commencing
on November 7, 2017, but if any Interest Payment Date (other than the maturity date of the Floating Rate Notes) is not a Business Day, such Interest Payment Date will be postponed to the immediately succeeding day that is a Business Day, except
that if that Business Day is in the immediately succeeding calendar month, the Interest Payment Date shall be the immediately preceding Business Day. If the maturity date of this Note falls on a day that is not a Business Day, the payment of
principal and interest will be made on the next succeeding Business Day, and no interest on such payment will accrue for the period from and after the maturity date of this Note. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date for such interest, which shall be the date that is fifteen
(15) calendar days prior to the relevant Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Note is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the Notes not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
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A-1-2
Reference is hereby made to the further provisions of the Notes set forth on the reverse hereof,
which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-1-3
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Dated: August 7, 2017
A-1-4
This Note is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON, as
Trustee
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By:
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Authorized Signatory
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Dated: August
7
, 2017
A-1-5
[REVERSE OF NOTE]
1. This Note is one of a duly authorized issue of Securities of the Company (the “
Notes
”), issued and
to be issued in one or more series under the Indenture, dated as of September 27, 2013 (as supplemented prior to the date hereof, the “
Base Indenture
”), and the Fourth Supplemental Indenture relating to the Notes dated as of
August
7
, 2017 (the “
Supplemental Indenture
” and, together with the Base Indenture, the “
Indenture
”), between the Company and The Bank of New York Mellon, as Trustee (the “
Trustee
,” which
term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of
the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, such series initially limited in aggregate principal amount to $500,000,000;
provided
that the Company may at any time and from time to time, without the consent of any Holder, issue additional Notes of this series.
All terms which are used but not defined in this Note and which are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
2. The Notes are not subject to optional redemption prior to maturity.
3. The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all
of its properties and assets to any Person, unless the provisions of Article Eight of the Base Indenture are complied with.
4. The Base Indenture permits, with certain exceptions as therein provided, the amendment of the Indenture and the
modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture and the Notes at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding. The Base Indenture and the Supplemental Indenture also contain provisions (including the provisions in Section 1006 of the Base Indenture and Section 2.10 of the Supplemental Indenture)
permitting the Holders of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and the Notes and
certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holders of Notes shall be conclusive and binding upon such Holders and upon all future Holders of the Notes and of any Notes issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
5. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be
declared, or shall immediately become, due and payable in the manner and with the effect provided in the Indenture.
A-1-6
As provided in and subject to the provisions of the Indenture, the Holders of the Notes shall not
have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder or hereunder, unless certain conditions set forth in the Indenture
are met. The foregoing shall not apply to any suit instituted by the Holder of the Notes for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
6. The Base Indenture and the Supplemental Indenture contain provisions for defeasance at any time of the entire
indebtedness of the Notes or certain restrictive covenants and Events of Default with respect to such Notes, in each case upon compliance with certain conditions set forth in the Indenture.
7. As provided in the Indenture and subject to certain limitations set forth in the Indenture (including the
limitations in Section 311 of the Base Indenture), the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the
principal of and any interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
[This Note is a Global Security and is subject to the provisions of the Base Indenture and the Supplemental Indenture relating to Global
Securities, including the limitations in Section 311 of the Base Indenture on transfers and exchanges of Global Securities.]
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A-1-7
8.
This Note and the Indenture shall be governed by and construed in
accordance with the law of the State of New York in the United States.
A-1-8
SCHEDULE OF INCREASES OR DECREASES
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The following increases and decreases in this Global Security have been made:
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Date
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Amount of decrease in
Principal Amount
of
this Global Security
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Amount of increase in
Principal Amount
of
this Global Security
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Principal Amount of
this Global Security
following
such
decrease or increase
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Signature of
authorized signatory
of Trustee or
Security
Registrar
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A-1-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign
and transfer this Note to:
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(Print or type assignee’s name, address and zip code)
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(Insert assignee’s soc. sec. or tax I.D. No.)
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and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
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Date:
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Signature must be
guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor program reasonably acceptable to the Trustee
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Signature of Signature Guarantee
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A-1-10
EXHIBIT
A-2
[FORM OF 4.200% SENIOR NOTE DUE 2027]
[Global Security Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
A-2-1
GENERAL MOTORS COMPANY
4.200% Senior Notes due 2027
CUSIP No.:
37045VAN0
ISIN No.: US37045VAN01
GENERAL MOTORS COMPANY, a corporation duly organized and existing under the laws of Delaware (the
“
Company
,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of
$[ ] ([ ] DOLLARS)[, as revised by the Schedule of Increases and Decreases attached hereto,]
1
on
October 1, 2027, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on April 1 and October 1 of each year,
commencing on April 1, 2018, at the rate of 4.200% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date for such interest, which shall be the March 15 or September 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the Notes not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
Reference is hereby made to the further provisions of the Notes set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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A-2-2
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Dated: August 7, 2017
A-2-3
This Note is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON, as
Trustee
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By:
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Authorized Signatory
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Dated: August 7, 2017
A-2-4
[REVERSE OF NOTE]
1. This Note is one of a duly authorized issue of Securities of the Company (the “
Notes
”), issued and
to be issued in one or more series under the Indenture, dated as of September 27, 2013 (as supplemented prior to the date hereof, the “
Base Indenture
”), and the Fourth Supplemental Indenture relating to the Notes dated as of
August 7, 2017 (the “
Supplemental Indenture
” and, together with the Base Indenture, the “
Indenture
”), between the Company and The Bank of New York Mellon, as Trustee (the “
Trustee
,” which term
includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, such series initially limited in aggregate principal amount to $750,000,000;
provided
that the Company may at any time and from time to time, without the consent of any Holder, issue additional Notes of this series.
All
terms which are used but not defined in this Note and which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
2. At any time prior to July 1, 2027, the Company may at any time and from time to time, in whole or in part, on
at least 30 days’ but not more than 60 days’ prior notice mailed to the registered email or physical address of each Holder of Notes to be redeemed, redeem the Notes at a redemption price equal to the greater of the following amounts: (i)
100% of the principal amount of the Notes to be redeemed; and (ii) as determined by the Company, the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (not including any portion
of payments of interest accrued as of the applicable redemption date), discounted to the applicable redemption date on a semiannual basis at a rate equal to the sum of the Treasury Rate plus 30 basis points.
On or after July 1, 2027, the Company may, at any time and from time to time, in whole or in part, on at least 30 days’ but not more
than 60 days’ prior notice mailed to the registered email or physical address of each Holder of Notes to be redeemed, redeem the Notes at a redemption price equal to 100% of the principal amount of the Notes to be redeemed.
The redemption price for any Notes redeemed pursuant to this Section 2 shall include accrued and unpaid interest, if any, on the
principal amount of such Notes up to, but not including, the redemption date. The applicable redemption price will be calculated assuming a
360-day
year consisting of twelve
30-day
months. Unless the Company defaults in the payment of the applicable redemption price, on and after the applicable redemption date, interest will cease to accrue on the Notes or portions of the Notes
called for redemption.
The provisions of Article Eleven of the Base Indenture shall apply to any redemption of the Notes.
A-2-5
For purposes of this Section 2, the following terms shall have the following specified
meanings:
“
Comparable Treasury Issue
” means the United States Treasury security selected by a Reference Treasury
Dealer as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be used, at the time of selection and in accordance with customary market practice, in pricing new issues of corporate debt
securities of a comparable maturity to the remaining term of such Notes.
“
Comparable Treasury Price
” means, with
respect to any redemption date, as determined by the Company, (A) the average of the five Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of the Reference Treasury Dealer Quotations or
(B) if we obtain fewer than five Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received.
“
Reference Treasury Dealer
” means (i) each of Deutsche Bank Securities Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Morgan Stanley & Co. LLC and their respective successors, unless any of them ceases to be a primary United States Government securities dealer in New York City (a “
Primary Treasury
Dealer
”), in which case the Company will substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer and (ii) two other nationally recognized investment banking firms that are Primary
Treasury Dealers as selected by the Company.
“
Reference Treasury Dealer Quotations
” means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Company by such Reference Treasury Dealer as of 5:00 p.m., New York City time, on the third Business Day preceding that redemption date.
“
Treasury Rate
” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, calculated as of the third Business Day preceding the redemption date, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
3. The Company shall not consolidate with or merge with or into, or
convey, transfer or lease all or substantially all of its properties and assets to any Person, unless the provisions of Article Eight of the Base Indenture are complied with.
4. The Base Indenture permits, with certain exceptions as therein provided, the amendment of the Indenture and the
modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture and the Notes at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding. The Base Indenture and
A-2-6
the Supplemental Indenture also contain provisions (including the provisions in Section 1006 of the Base Indenture and Section 2.10 of the Supplemental Indenture) permitting the Holders
of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and the Notes and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holders of Notes shall be conclusive and binding upon such Holders and upon all future Holders of the Notes and of any Notes issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
5. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be
declared, or shall immediately become, due and payable in the manner and with the effect provided in the Indenture.
As provided in and
subject to the provisions of the Indenture, the Holders of the Notes shall not have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy
thereunder or hereunder, unless certain conditions set forth in the Indenture are met. The foregoing shall not apply to any suit instituted by the Holder of the Notes for the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
6. The Base Indenture and the Supplemental Indenture contain provisions for defeasance at any time of the entire
indebtedness of the Notes or certain restrictive covenants and Events of Default with respect to such Notes, in each case upon compliance with certain conditions set forth in the Indenture.
7. As provided in the Indenture and subject to certain limitations set forth in the Indenture (including the
limitations in Section 311 of the Base Indenture), the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the
principal of and any interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
A-2-7
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
[This Note is a Global Security and is subject to the provisions of the Base Indenture and the Supplemental
Indenture relating to Global Securities, including the limitations in Section 311 of the Base Indenture on transfers and exchanges of Global Securities.]
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8.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New
York in the United States.
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To be included in Global Securities.
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A-2-8
SCHEDULE OF INCREASES OR DECREASES
1
The following increases and decreases in this Global Security have been made:
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Date
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Amount of decrease in
Principal Amount of
this Global Security
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Amount of increase in
Principal Amount of
this Global Security
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Principal Amount of
this Global Security
following such
decrease or increase
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Signature of
authorized signatory
of
Trustee or Security
Registrar
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To be included in Global Securities.
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A-2-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign
and transfer this Note to:
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(Print or type assignee’s name, address and zip code)
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(Insert assignee’s soc. sec. or tax I.D. No.)
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and irrevocably appoint
agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
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Date:
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Signature must be
guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor program reasonably acceptable to the Trustee
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Signature of Signature Guarantee
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A-2-10
EXHIBIT
A-3
[FORM OF 5.150% SENIOR NOTE DUE 2038]
[Global Security Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
A-3-1
GENERAL MOTORS COMPANY
5.150% Senior Notes due 2038
CUSIP No.:
37045VAP5
ISIN No.: US37045VAP58
GENERAL MOTORS COMPANY, a corporation duly organized and existing under the laws of Delaware (the
“
Company
,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of
$[ ] ([ ] DOLLARS)[, as revised by the Schedule of Increases and Decreases attached hereto,]
1
on
April 1, 2038, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on April 1 and October 1 of each year,
commencing on April 1, 2018, at the rate of 5.150% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date for such interest, which shall be the March 15 or September 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the Notes not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
Reference is hereby made to the further provisions of the Notes set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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To be included in Global Securities.
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A-3-2
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Dated: August 7, 2017
A-3-3
This Note is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON, as
Trustee
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By:
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Authorized Signatory
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Dated: August 7, 2017
A-3-4
[REVERSE OF NOTE]
1. This Note is one of a duly authorized issue of Securities of the Company (the “
Notes
”), issued and
to be issued in one or more series under the Indenture, dated as of September 27, 2013 (as supplemented prior to the date hereof, the “
Base Indenture
”), and the Fourth Supplemental Indenture relating to the Notes dated as of
August 7, 2017 (the “
Supplemental Indenture
” and, together with the Base Indenture, the “
Indenture
”), between the Company and The Bank of New York Mellon, as Trustee (the “
Trustee
,” which term
includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, such series initially limited in aggregate principal amount to $1,000,000,000;
provided
that the Company may at any time and from time to time, without the consent of any Holder, issue additional Notes of this series.
All
terms which are used but not defined in this Note and which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
2. At any time prior to October 1, 2037, the Company may at any time and from time to time, in whole or in part,
on at least 30 days’ but not more than 60 days’ prior notice mailed to the registered email or physical address of each Holder of Notes to be redeemed, redeem the Notes at a redemption price equal to the greater of the following amounts:
(i) 100% of the principal amount of the Notes to be redeemed; and (ii) as determined by the Company, the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (not including any
portion of payments of interest accrued as of the applicable redemption date), discounted to the applicable redemption date on a semiannual basis at a rate equal to the sum of the Treasury Rate plus 35 basis points.
On or after October 1, 2037, the Company may, at any time and from time to time, in whole or in part, on at least 30 days’ but not
more than 60 days’ prior notice mailed to the registered email or physical address of each Holder of Notes to be redeemed, redeem the Notes at a redemption price equal to 100% of the principal amount of the Notes to be redeemed.
The redemption price for any Notes redeemed pursuant to this Section 2 shall include accrued and unpaid interest, if any, on the
principal amount of such Notes up to, but not including, the redemption date. The applicable redemption price will be calculated assuming a
360-day
year consisting of twelve
30-day
months. Unless the Company defaults in the payment of the applicable redemption price, on and after the applicable redemption date, interest will cease to accrue on the Notes or portions of the Notes
called for redemption.
The provisions of Article Eleven of the Base Indenture shall apply to any redemption of the Notes.
A-3-5
For purposes of this Section 2, the following terms shall have the following specified
meanings:
“
Comparable Treasury Issue
” means the United States Treasury security selected by a Reference Treasury
Dealer as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be used, at the time of selection and in accordance with customary market practice, in pricing new issues of corporate debt
securities of a comparable maturity to the remaining term of such Notes.
“
Comparable Treasury Price
” means, with
respect to any redemption date, as determined by the Company, (A) the average of the five Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of the Reference Treasury Dealer Quotations or
(B) if we obtain fewer than five Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received.
“
Reference Treasury Dealer
” means (i) each of Deutsche Bank Securities Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Morgan Stanley & Co. LLC and their respective successors, unless any of them ceases to be a primary United States Government securities dealer in New York City (a “
Primary Treasury
Dealer
”), in which case the Company will substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer and (ii) two other nationally recognized investment banking firms that are Primary
Treasury Dealers as selected by the Company.
“
Reference Treasury Dealer Quotations
” means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Company by such Reference Treasury Dealer as of 5:00 p.m., New York City time, on the third Business Day preceding that redemption date.
“
Treasury Rate
” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, calculated as of the third Business Day preceding the redemption date, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
3. The Company shall not consolidate with or merge with or into, or
convey, transfer or lease all or substantially all of its properties and assets to any Person, unless the provisions of Article Eight of the Base Indenture are complied with.
4. The Base Indenture permits, with certain exceptions as therein provided, the amendment of the Indenture and the
modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture and the Notes at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding. The Base Indenture and
A-3-6
the Supplemental Indenture also contain provisions (including the provisions in Section 1006 of the Base Indenture and Section 2.10 of the Supplemental Indenture) permitting the Holders
of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and the Notes and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holders of Notes shall be conclusive and binding upon such Holders and upon all future Holders of the Notes and of any Notes issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
5. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be
declared, or shall immediately become, due and payable in the manner and with the effect provided in the Indenture.
As provided in and
subject to the provisions of the Indenture, the Holders of the Notes shall not have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy
thereunder or hereunder, unless certain conditions set forth in the Indenture are met. The foregoing shall not apply to any suit instituted by the Holder of the Notes for the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
6. The Base Indenture and the Supplemental Indenture contain provisions for defeasance at any time of the entire
indebtedness of the Notes or certain restrictive covenants and Events of Default with respect to such Notes, in each case upon compliance with certain conditions set forth in the Indenture.
7. As provided in the Indenture and subject to certain limitations set forth in the Indenture (including the
limitations in Section 311 of the Base Indenture), the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the
principal of and any interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
A-3-7
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
[This Note is a Global Security and is subject to the provisions of the Base Indenture and the Supplemental
Indenture relating to Global Securities, including the limitations in Section 311 of the Base Indenture on transfers and exchanges of Global Securities.]
1
8.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New
York in the United States.
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To be included in Global Securities.
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A-3-8
SCHEDULE OF INCREASES OR DECREASES
1
The following increases and decreases in this Global Security have been made:
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Date
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Amount of decrease in
Principal Amount of
this Global Security
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Amount of increase in
Principal Amount of
this Global Security
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Principal Amount of
this Global Security
following such
decrease or
increase
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Signature of
authorized signatory
of
Trustee or Security
Registrar
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To be included in Global Securities.
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A-3-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign
and transfer this Note to:
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(Print or type assignee’s name, address and zip code)
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(Insert assignee’s soc. sec. or tax I.D. No.)
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and irrevocably appoint agent
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
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Date:
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Signature must be
guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor program reasonably acceptable to the Trustee
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Signature of Signature Guarantee
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A-3-10
EXHIBIT
A-4
[FORM OF 5.400% SENIOR NOTE DUE 2048]
[Global Security Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
A-4-1
GENERAL MOTORS COMPANY
5.400% Senior Notes due 2048
CUSIP No.:
37045VAQ3
ISIN No.: US37045VAQ32
GENERAL MOTORS COMPANY, a corporation duly organized and existing under the laws of Delaware (the
“
Company
,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of
$[ ] ([ ] DOLLARS)[, as revised by the Schedule of Increases and Decreases attached hereto,]
1
on April 1, 2048, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in
arrears on April 1 and October 1 of each year, commencing on April 1, 2018, at the rate of 5.400% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date for such interest, which shall be the March 15 or
September 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this Note is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the
Notes not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Reference is hereby made to the further provisions of the Notes
set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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To be included in Global Securities.
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A-4-2
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Dated: August 7, 2017
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GENERAL MOTORS COMPANY
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By:
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Name:
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Title:
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A-4-3
This Note is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON, as
Trustee
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By:
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Authorized Signatory
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Dated: August 7, 2017
A-4-4
[REVERSE OF NOTE]
1. This Note is one of a duly authorized issue of Securities of the Company (the “
Notes
”), issued and
to be issued in one or more series under the Indenture, dated as of September 27, 2013 (as supplemented prior to the date hereof, the “
Base Indenture
”), and the Fourth Supplemental Indenture relating to the Notes dated as of
August 7, 2017 (the “
Supplemental Indenture
” and, together with the Base Indenture, the “
Indenture
”), between the Company and The Bank of New York Mellon, as Trustee (the “
Trustee
,” which term
includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, such series initially limited in aggregate principal amount to $750,000,000;
provided
that the Company may at any time and from time to time, without the consent of any Holder, issue additional Notes of this series.
All
terms which are used but not defined in this Note and which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
2. At any time prior to October 1, 2047, the Company may at any time and from time to time, in whole or in part,
on at least 30 days’ but not more than 60 days’ prior notice mailed to the registered email or physical address of each Holder of Notes to be redeemed, redeem the Notes at a redemption price equal to the greater of the following amounts:
(i) 100% of the principal amount of the Notes to be redeemed; and (ii) as determined by the Company, the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (not including any
portion of payments of interest accrued as of the applicable redemption date), discounted to the applicable redemption date on a semiannual basis at a rate equal to the sum of the Treasury Rate plus 40 basis points.
On or after October 1, 2047, the Company may, at any time and from time to time, in whole or in part, on at least 30 days’ but not
more than 60 days’ prior notice mailed to the registered email or physical address of each Holder of Notes to be redeemed, redeem the Notes at a redemption price equal to 100% of the principal amount of the Notes to be redeemed.
The redemption price for any Notes redeemed pursuant to this Section 2 shall include accrued and unpaid interest, if any, on the
principal amount of such Notes up to, but not including, the redemption date. The applicable redemption price will be calculated assuming a
360-day
year consisting of twelve
30-day
months. Unless the Company defaults in the payment of the applicable redemption price, on and after the applicable redemption date, interest will cease to accrue on the Notes or portions of the Notes
called for redemption.
The provisions of Article Eleven of the Base Indenture shall apply to any redemption of the Notes.
A-4-5
For purposes of this Section 2, the following terms shall have the following specified
meanings:
“
Comparable Treasury Issue
” means the United States Treasury security selected by a Reference Treasury
Dealer as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be used, at the time of selection and in accordance with customary market practice, in pricing new issues of corporate debt
securities of a comparable maturity to the remaining term of such Notes.
“
Comparable Treasury Price
” means, with
respect to any redemption date, as determined by the Company, (A) the average of the five Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of the Reference Treasury Dealer Quotations or
(B) if we obtain fewer than five Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received.
“
Reference Treasury Dealer
” means (i) each of Deutsche Bank Securities Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Morgan Stanley & Co. LLC and their respective successors, unless any of them ceases to be a primary United States Government securities dealer in New York City (a “
Primary Treasury
Dealer
”), in which case the Company will substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer and (ii) two other nationally recognized investment banking firms that are Primary
Treasury Dealers as selected by the Company.
“
Reference Treasury Dealer Quotations
” means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Company by such Reference Treasury Dealer as of 5:00 p.m., New York City time, on the third Business Day preceding that redemption date.
“
Treasury Rate
” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, calculated as of the third Business Day preceding the redemption date, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
3. The Company shall not consolidate with or merge with or into, or
convey, transfer or lease all or substantially all of its properties and assets to any Person, unless the provisions of Article Eight of the Base Indenture are complied with.
4. The Base Indenture permits, with certain exceptions as therein provided, the amendment of the Indenture and the
modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture and the Notes at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding. The Base Indenture and
A-4-6
the Supplemental Indenture also contain provisions (including the provisions in Section 1006 of the Base Indenture and Section 2.10 of the Supplemental Indenture) permitting the Holders
of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and the Notes and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holders of Notes shall be conclusive and binding upon such Holders and upon all future Holders of the Notes and of any Notes issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
5. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be
declared, or shall immediately become, due and payable in the manner and with the effect provided in the Indenture.
As provided in and
subject to the provisions of the Indenture, the Holders of the Notes shall not have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy
thereunder or hereunder, unless certain conditions set forth in the Indenture are met. The foregoing shall not apply to any suit instituted by the Holder of the Notes for the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
6. The Base Indenture and the Supplemental Indenture contain provisions for defeasance at any time of the entire
indebtedness of the Notes or certain restrictive covenants and Events of Default with respect to such Notes, in each case upon compliance with certain conditions set forth in the Indenture.
7. As provided in the Indenture and subject to certain limitations set forth in the Indenture (including the
limitations in Section 311 of the Base Indenture), the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the
principal of and any interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
A-4-7
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
[This Note is a Global Security and is subject to the provisions of the Base Indenture and the Supplemental
Indenture relating to Global Securities, including the limitations in Section 311 of the Base Indenture on transfers and exchanges of Global Securities.]
1
8.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New
York in the United States.
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To be included in Global Securities.
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A-4-8
SCHEDULE OF INCREASES OR DECREASES
1
The following increases and decreases in this Global Security have been made:
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Date
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Amount of decrease in
Principal Amount of
this Global Security
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Amount of increase in
Principal Amount of
this Global Security
|
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Principal Amount of
this Global Security
following such
decrease or increase
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Signature of
authorized signatory
of
Trustee or Security
Registrar
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1
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To be included in Global Securities.
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A-4-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign
and transfer this Note to:
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(Print or type assignee’s name, address and zip code)
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(Insert assignee’s soc. sec. or tax I.D. No.)
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and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
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Date:
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Signature must be
guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor program reasonably acceptable to the Trustee
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Signature of Signature Guarantee
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A-4-10
