EXHIBIT 99.5
EXHIBIT D
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HUGHES ELECTRONICS CORPORATION
The undersigned, [name of officer], certifies that [he / she] is the
[title of officer] of Hughes Electronics Corporation, a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), and
does hereby further certify as follows:
(1) The name of the Corporation is Hughes Electronics Corporation.
(2) Hughes Electronics Corporation was originally incorporated under the
name Microwave Associates Gaithersburg, Inc., and the original Certificate of
Incorporation of the Corporation was filed with the Secretary of State of the
State of Delaware on October 17, 1977.
(3) This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
(4) This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the certificate of incorporation of the
Corporation, as heretofore amended or supplemented.
(5) The text of the Amended and Restated Certificate of Incorporation of
the Corporation as amended hereby is restated to read in its entirety as
follows:
ARTICLE I
The name of this corporation (hereinafter called the "Corporation") is:
Hughes Electronics Corporation
ARTICLE II
The purpose or purposes of this Corporation shall be to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "DGCL").
ARTICLE III
The name and address of the Corporation's registered agent in the State of
Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle, Delaware.
ARTICLE IV
Capital Stock
SECTION 1. Authorized Stock; No Pre-emptive Rights.
The total number of shares of capital stock that this Corporation shall
have authority to issue is [________] (________) consisting of (i) [________]
(________) shares of Common Stock, $0.01 par value per share ("Common Stock")
and [________] (________) shares of Class B Common Stock, $0.01 par value per
share ("Class B Common Stock" and, together with the Common Stock, the "Hughes
Common Stock"), (ii) [________] (________) shares of excess stock, $0.01 par
value per share (the "Excess Stock") and (iii) [________] (________) shares of
preferred stock, $0.01 par value per share (the "Preferred Stock")./1/
The powers, preferences and rights and the qualifications, limitations and
restrictions in respect of the shares of each class are set forth in the
following sections.
SECTION 2. Preferred Stock.
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby expressly authorized, to the fullest
extent permitted by law, to provide, by resolution or resolutions, for the
issuance of shares of Preferred Stock in one or more series and, by filing a
certificate pursuant to the DGCL (hereinafter referred to as a "Preferred Stock
Designation"), to establish from time to time the number of shares constituting
each such series and the designation of such series, the voting powers (if any)
of the shares of such series, and the relative rights, powers, privileges,
preferences and limitations of the shares of such series as shall be stated and
expressed in such Preferred Stock Designation, including, without limitation,
the authority to provide that any such series may be (i) subject to redemption
at such time or times and at such price or prices as are set forth in the
Preferred Stock Designation; (ii) entitled to receive dividends (which may be
cumulative or non-cumulative) at such rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series as are set forth in
the Preferred Stock Designation; (iii) entitled to such rights upon the
dissolution of, or upon any distribution of the assets of, the Corporation as
are set forth in the Preferred Stock Designation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, of the Corporation at
such price or prices or at such rates of exchange and with such adjustments as
are set forth in the Preferred Stock Designation.
Shares of Preferred Stock, regardless of series, that are converted into
other securities or other consideration or otherwise acquired by the Corporation
shall be retired and canceled and the Corporation shall take all such actions as
are necessary to cause such shares to have the status
- -------------------
/1/ Authorized shares to be filled in prior to Closing based upon expected
number of shares to be issued in the Split-Off, to be sold to Purchaser and to
be issued in the Merger, plus such number of additional shares as the parties
shall determine.
of authorized but unissued shares of Preferred Stock, without designation as to
series, and the Corporation shall have the right to reissue such shares.
SECTION 3. Common Stock.
A. Voting Rights.
Subject to applicable law and the rights of any outstanding series of
Preferred Stock to vote as a separate class or series, each share of Hughes
Common Stock shall entitle the holder thereof to one (1) vote upon all matters
upon which stockholders shall have the right to vote.
B. Dividends and Distributions.
Subject to the preferential and other dividend rights of any outstanding
series of Preferred Stock, holders of Hughes Common Stock shall be entitled to
such dividends and other distributions in cash, stock or property of the
Corporation as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available therefor.
C. Conversion.
Immediately after the Merger Effective Time each share of Class B Common
Stock outstanding immediately prior to the Merger Effective Time shall be
converted into and become one validly issued, fully paid and non-assessable
share of Common Stock.
SECTION 4. Excess Stock.
A. (1) For purposes of (x) protecting the Corporation and its
stockholders (i) from potential adverse tax effects that could result for U.S.
income tax purposes from certain changes in ownership of shares of Equity Stock
in light of the Corporation's participation in the Split-Off and the Merger and
related transactions, and (ii) from the potential adverse impact of a third
party seeking to acquire control of the Corporation at a lower price than should
be available to the Corporation and its stockholders during the short period of
time when the Corporation's largest stockholder may be prohibited or
substantially delayed in its ability to acquire additional Equity Stock of the
Corporation and hence be in a position to provide greater consideration to the
Corporation and its stockholders or to cause any third party to offer greater
consideration than would otherwise be the case, and (y) inducing The News
Corporation Limited, an Australia corporation (the "Purchaser") to enter into
the Stock Purchase Agreement and the Merger Agreement (as defined in the Stock
Purchase Agreement) and to consummate the transactions contemplated thereby, the
provisions of this Section 4 shall apply.
(2) Prohibited Transfers. If, notwithstanding any other provisions
contained herein, at any time during the Prohibition Period, there is a
purported Transfer or Non-Transfer Event such that:
(a) any Initial Stockholder or any Tax-Related Party otherwise
would be treated as acquiring shares of Equity Stock, directly or indirectly
(as determined by
reference to Section 355(e) of the Code, taking into account applicable
constructive ownership rules and any final or temporary Treasury regulations
promulgated thereunder); or
(b) any other Person otherwise would be treated as acquiring
shares of Equity Stock, directly or indirectly (as determined by reference to
Section 355(e) of the Code, taking into account applicable constructive
ownership rules and any final or temporary Treasury regulations promulgated
thereunder), other than shares of Equity Stock that would not be considered, for
purposes of Section 335(e) of the Code, to be part of a plan that includes the
Split-Off solely by reason of the application of Safe Harbor V (the so-called
"public trading safe harbor") set forth in Treasury Regulation Section
1.355-7T(d)(5) (as in effect on the date hereof and applied without regard to
whether the transferor is a 10% shareholder of the Corporation or a controlling
shareholder of the Corporation, each as defined for purposes of Section 355(e)
of the Code) to such acquisition, then (i) except as otherwise provided in
Section 4.A(4) of this Article, the Purported Record Transferee (and the
Purported Beneficial Transferee, if different) shall acquire no right or
interest (or, in the case of a Non-Transfer Event, the Person holding record
title to the shares of Equity Stock purportedly Beneficially Owned by such
Beneficial Owner shall cease to own any right or interest) in such shares of
Equity Stock, (ii) such number of shares (rounded up to the nearest whole share)
of Equity Stock shall be automatically converted into an equal number of shares
of Excess Stock and transferred to a Trust in accordance with Section 4.D of
this Article and (iii) such Purported Record Transferee (and such Purported
Beneficial Transferee, if different) or, in the case of a Non-Transfer Event,
the Person who, immediately prior to such automatic conversion, was the holder
of record title to the shares of Equity Stock automatically converted, shall
submit the certificates representing such number of shares of Equity Stock to
the Corporation, accompanied by all requisite and duly executed assignments of
Transfer thereof, for registration in the name of the Trustee (as hereinafter
defined) of the Trust. Such conversion into Excess Stock and Transfer to a Trust
shall be effective as of the close of trading on the Trading Day prior to the
date of the purported Transfer or Non-Transfer Event, as the case may be, even
though the certificates representing the shares of Equity Stock so converted may
be submitted to the Corporation at a later date. For purposes of this Section 4
of Article IV, the number of shares of Equity Stock treated as acquired in the
case of a Non-Transfer Event shall be equal to the number of shares which cause
or result in an increase in the percentage of a Person's Beneficial Ownership of
the outstanding shares of Equity Stock.
(3) Conversion to Excess Stock. Upon the occurrence of such a
conversion of shares of Equity Stock into an equal number of shares of Excess
Stock, such shares of Equity Stock shall be automatically retired and canceled,
without any action required by the Board of Directors of the Corporation or any
other Person, and shall thereupon be restored to the status of authorized but
unissued shares of the particular class or series of Equity Stock from which
such Excess Stock was converted and may thereafter be reissued by the
Corporation as that particular class or series of Equity Stock.
(4) Waiver of Restrictions. (i) The Board of Directors (or in the
case of an acquisition described in Section 4.A(2)(a) of this Article, the audit
committee thereof) may, in its sole discretion, waive the restrictions set forth
in Section 4.A(2) of this Article with respect to a particular Transfer of
shares of Equity Stock or a particular Non-Transfer Event in the event of an
inadvertent violation of the provisions thereof by any Person, so long as such
waiver is
conditioned upon such Person promptly disposing (and such Person does in fact
promptly dispose) of a sufficient number of shares of Equity Stock such that any
such violation ceases to exist.
(i) Certain Exceptions. Notwithstanding Section 4.A(2) of this
Article, (i) any Person shall be permitted to acquire ownership of shares of
Equity Stock directly from (x) any Initial Stockholder or (y) the Corporation in
the case of (1) shares issued upon the exercise of employee compensatory stock
options, (2) shares issued in public financings and (3) shares issued in
connection with the acquisition of stock or assets of a third party; provided,
that (A) the aggregate number of shares of Equity Stock issued pursuant to
clauses (2) and (3) hereof does not exceed 10% of the then outstanding shares of
Equity Stock, and (B) no Person or its Affiliates (as such term is defined in
the Stock Purchase Agreement) as a result of issuances pursuant to clauses (2)
and (3) hereof acquires more than 5% of the then outstanding shares of Equity
Stock and (ii) any retirement plan maintained by General Motors Corporation or
any GM Affiliate or by the Corporation or any Hughes Affiliate for their
respective employees that is qualified under Section 401(a) or 403(a) of the
Code shall be permitted to acquire shares of Equity Stock.
B. Remedies for Breach. If the Corporation, or its designees, shall at any
time determine in good faith that a Transfer has taken place in violation of
Section 4A of this Article or that a Person intends to acquire or has attempted
to acquire, directly or indirectly, any shares of Equity Stock in violation of
Section 4.A of this Article, the Corporation shall, and shall cause its agents
to, take such action as it deems advisable to refuse to give effect to or to
prevent such Transfer or acquisition, including, but not limited to, refusing to
give effect to such Transfer on the stock transfer books of the Corporation or
instituting proceedings to enjoin such Transfer or acquisition, but the failure
to take any such action shall not affect the automatic conversion of shares of
Equity Stock into Excess Stock and their Transfer to a Trust in accordance with
Section 4.D of this Article.
C. Notice of Restricted Transfer. Any Person who acquires or attempts to
acquire shares of Equity Stock in violation of Section 4.A of this Article, or
any Person who owns shares of Equity Stock that were converted into shares of
Excess Stock and transferred to a Trust pursuant to Section 4.D of this Article,
shall immediately give written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may request
in order to determine the effect, if any, of such Transfer or Non-Transfer Event
on the tax-free status of the Split-Off. In the event that a Person determines
that Equity Stock has been acquired in violation of Section 4.A of this Article,
such Person shall immediately give written notice to the Corporation of such
acquisition and shall provide to the Corporation such other information as the
Corporation may request in order to determine the effect, if any, on such
acquisition on the tax-free status of the Split-Off.
D. Transfer in Trust. Upon the Split-Off Effective Time, the Corporation shall
create, or cause to be created, a Trust, and the audit committee of the Board of
Directors shall designate a Trustee. Upon any purported Transfer or Non-Transfer
Event that results in Excess Stock pursuant to Section 4.A of this Article, (i)
the Corporation shall name a Beneficiary of the Trust and (ii) such Excess Stock
shall be automatically transferred to such Trust to be held for the exclusive
benefit of the Beneficiary. Any conversion of shares of Equity Stock into shares
of
Excess Stock and transfer to a Trust shall be effective as of the close of
trading on the Trading Day prior to the date of the purported Transfer or
Non-Transfer Event that results in the conversion. Shares of Excess Stock so
held in trust shall be issued and outstanding shares of stock of the
Corporation.
E. Dividend Rights. Each share of Excess Stock shall be entitled to the same
dividends and distributions (as to both timing and amount) as may be declared by
the Board of Directors of the Corporation with respect to each share of Equity
Stock which was converted into such Excess Stock. The Trustee, as record holder
of the shares of Excess Stock, shall be entitled to receive all dividends and
distributions and shall hold all such dividends or distributions in trust for
the benefit of the Beneficiary. The Prohibited Owner with respect to such shares
of Excess Stock shall repay to the Trust the amount of any dividends or
distributions received by it (i) that are attributable to any shares of Equity
Stock that have been converted into shares of Excess Stock and (ii) the record
date of which was on or after the date that such shares were converted into
shares of Excess Stock. The Corporation shall take all measures that it
determines are reasonably necessary to recover the amount of any such dividend
or distribution paid to a Prohibited Owner, including, if necessary, withholding
any portion of future dividends or distributions payable on shares of Equity
Stock purportedly Beneficially Owned by the Person who, but for the provisions
of this Article, would Beneficially Own the shares of Equity Stock that were
converted into shares of Excess Stock; and, as soon as reasonably practicable
following the Corporation's receipt or withholding thereof, shall pay over to
the Trust for the benefit of the Beneficiary the dividends so received or
withheld, as the case may be.
F. Liquidation of the Corporation. In the event of any voluntary or
involuntary liquidation of, or winding up of, or any distribution of the assets
of, the Corporation, each holder of shares of Excess Stock shall be entitled to
receive, ratably with each other holder of shares of the same class and series
of Equity Stock which was converted into such Excess Stock, that portion of the
assets of the Corporation that is available for distribution to the holders of
the same class and series of Equity Stock which was converted into such Excess
Stock. The Trust shall distribute to the Prohibited Owner the amounts received
upon such liquidation, dissolution, or winding up, or distribution; provided,
however, that the Prohibited Owner shall not be entitled to receive amounts in
excess of, in the case of a purported Transfer in which the Prohibited Owner
gave value for shares of Equity Stock and which Transfer resulted in the
conversion of such shares of Equity Stock into shares of Excess Stock, the
product of (x) the price per share, if any, such Prohibited Owner paid for the
shares of Equity Stock and (y) the number of shares of Equity Stock which were
so converted into Excess Stock, and, in the case of a Non-Transfer Event or
purported Transfer in which the Prohibited Owner did not give value for such
shares (e.g., if the shares were received through a gift or devise) and which
Non-Transfer Event or purported Transfer, as the case may be, resulted in the
conversion of the shares into shares of Excess Stock, the product of (x) the
price per share equal to the Market Price on the date of such Non-Transfer Event
or purported Transfer and (y) the number of shares of Equity Stock which were so
converted into Excess Stock. Any remaining amount in such Trust shall be
distributed to the Beneficiary.
G. Voting Rights. Each share of Excess Stock shall entitle the holder to no
voting rights other than those class voting rights required to be afforded to
holders of a class of capital stock under Delaware law. The Trustee, as record
holder of the Excess Stock, shall be entitled to vote
all shares of Excess Stock. Any vote by a Prohibited Owner as a purported holder
of shares of Equity Stock prior to the discovery by the Corporation that such
shares of Equity Stock have been converted into shares of Excess Stock shall,
subject to applicable law, be rescinded and shall be void ab initio with respect
to such shares of Excess Stock.
H. Restrictions on Transfer; Sale of Excess Stock. (a) As soon as practicable
after the Trustee acquires Excess Stock and complies with the last sentence of
this Section 4.H(a), but in an orderly fashion so as not to materially adversely
affect the trading price of the same class and series of Equity Stock from which
such Excess Stock was converted, the Trustee shall designate one or more Persons
as Permitted Transferees and sell to such Permitted Transferees any shares of
Excess Stock held by the Trustee; provided, however, that (i) any Permitted
Transferee so designated purchases for cash (whether in a public or private
sale) the shares of Excess Stock and (ii) any Permitted Transferee so designated
may acquire the shares of the same class and series of Equity Stock from which
such Excess Stock was converted without violating any of the restrictions set
forth in Section 4.A of this Article and without such acquisition resulting in
the conversion of such shares of Equity Stock into shares of Excess Stock and
the Transfer of such shares to a Trust pursuant to Sections 4.A and 4.D of this
Article. Subject to the foregoing, the Trustee shall have the exclusive and
absolute right to designate Permitted Transferees of any and all shares of
Excess Stock. Prior to any Transfer by the Trustee of shares of Excess Stock to
a Permitted Transferee, the Trustee shall give not less than five Trading Days
prior written notice to the Corporation of such intended Transfer and the
Corporation must have waived in writing its purchase rights under Section 4.J of
this Article if such intended Transfer would occur during the 30-day period
referred to therein.
(b) Upon the designation by the Trustee of a Permitted Transferee in
accordance with the provisions of this Section 4.H, the Trustee shall cause to
be Transferred to the Permitted Transferee shares of Excess Stock acquired by
the Trustee pursuant to Section 4.G of this Article. Upon such Transfer of
shares of Excess Stock to the Permitted Transferee, such shares of Excess Stock
shall be automatically converted into an equal number of shares of Equity Stock
of the same class and series from which such Excess Stock was converted. Upon
the occurrence of such a conversion of shares of Excess Stock into an equal
number of shares of Equity Stock, such shares of Excess Stock shall be
automatically retired and canceled, without any action required by the Board of
Directors of the Corporation, and shall thereupon be restored to the status of
authorized but unissued shares of Excess Stock and may be reissued by the
Corporation as Excess Stock. The Trustee shall (i) cause to be recorded on the
stock transfer books of the Corporation that the Permitted Transferee is the
holder of record of such number of shares of Equity Stock, and (ii) distribute
to the Beneficiary any and all amounts held with respect to such shares of
Excess Stock after making payment to the Prohibited Owner pursuant to Section
4.I of this Article.
(c) If the Transfer of shares of Excess Stock to a purported
Permitted Transferee would or does violate any of the transfer restrictions set
forth in Section 4.A of this Article, such Transfer shall be void ab initio as
to that number of shares of Excess Stock that cause the violation of any such
restriction when such shares are converted into shares of Equity Stock (as
described in Section 4.H(b) above) and the purported Permitted Transferee shall
be deemed to be a Prohibited Owner and shall acquire no rights in such shares of
Excess Stock or Equity Stock. Such shares of Equity Stock shall be automatically
converted into Excess Stock
and transferred to the Trust from which they were originally Transferred. Such
conversion and transfer to the Trust shall be effective as of the close of
trading on the Trading Day prior to the date of the Transfer to the purported
Permitted Transferee and the provisions of this Article shall apply to such
shares, including, without limitation, the provisions of Sections 4.H through
4.J with respect to any future transfer of such shares by the Trust.
I. Payments to Prohibited Owner. Any Prohibited Owner shall be entitled
(following acquisition of the shares of Excess Stock and subsequent designation
of and sale of Excess Stock to a Permitted Transferee in accordance with Section
4.H of this Article or following the acceptance of the offer to purchase such
shares in accordance with Section 4.J of this Article) to receive from the
Trustee following the sale or other disposition of such shares of Excess Stock
the lesser of (a)(i) in the case of a purported Transfer in which the Prohibited
Owner gave value for shares of Equity Stock and which Transfer resulted in the
conversion of such shares into shares of Excess Stock, the product of (x) the
price per share, if any, such Prohibited Owner paid for the shares of Equity
Stock and (y) the number of such shares of Equity Stock which were so converted
into Excess Stock and (ii) in the case of a Non-Transfer Event or purported
Transfer in which the Prohibited Owner did not give value for such shares (e.g.,
if the shares were received through a gift or devise) and which Non-Transfer
Event or purported Transfer, as the case may be, resulted in the conversion of
such shares into shares of Excess Stock, the product of (x) the price per share
equal to the Market Price on the date of such Non-Transfer Event or purported
Transfer and (y) the number of such shares of Equity Stock which were so
converted into Excess Stock or (b) the proceeds received by the Trustee from the
sale or other disposition of such shares of Excess Stock in accordance with
Section 4.H or Section 4.J of this Article. Any amounts received by the Trustee
in respect of such shares of Excess Stock which are in excess of such amounts to
be paid to the Prohibited Owner pursuant to this Section 4.I shall be
distributed to the Beneficiary in accordance with the provisions of Section 4.H
of this Article. The Trustee and the Trust shall not be liable for, and each
Beneficiary and Prohibited Owner shall be deemed to have irrevocably waived, any
claim by a Beneficiary or Prohibited Owner arising out of the disposition of
shares of Excess Stock, except for claims arising out of the gross negligence or
willful misconduct of, or any failure to make payments in accordance with this
Section 4 of this Article by, such Trustee.
J. Purchase Right in Stock Transferred to Trustee. Shares of Excess Stock
shall be deemed to have been offered for sale to the Corporation, or its
designee, at a price per share equal to the price per share in the transaction
that created such shares of Excess Stock (or, in the case of a Non-Transfer
Event or Transfer in which the Prohibited Owner did not give value for the
shares (e.g., if the shares were received through a gift or devise), the Market
Price on the date of such Non-Transfer Event or Transfer in which the Prohibited
Owner did not give value for the shares). The Corporation shall have the right
to accept such offer for a period of 30 days following the later of (x) the date
of the Non-Transfer Event or purported Transfer which results in such shares
of Excess Stock or (y) the date the Board of Directors of the Corporation first
determined that a Transfer or Non-Transfer Event resulting in shares in Excess
Stock has occurred, if the Corporation does not receive a notice of such
Transfer or Non-Transfer Event pursuant to Section 4.C of this Article.
K. Remedies Not Limited; Interpretations. Nothing contained in this Article
shall limit the authority of the Corporation to take such other action as it
deems necessary or advisable to
protect the Corporation and the interests of its stockholders from potential
adverse tax effects that could result from certain changes in ownership of
shares of Equity Stock. Notwithstanding anything herein to the contrary, the
Board of Directors shall have the power and authority to administer the
provisions of Section 4 of this Article IV and to make all interpretations and
determinations with respect thereto which, if made in good faith, and absent
manifest error, shall be conclusive and binding.
L. Legend. Each certificate for shares of Equity Stock (if and to the extent
certificated) shall bear the following or a similar legend:
"The shares of Hughes Electronics Corporation (the "Corporation")
represented by this certificate are subject to restrictions set forth in the
Corporation's Certificate of Incorporation, including restrictions based upon a
holder's ownership of shares of Equity Stock, and to automatic conversion upon
the occurrence of certain events, all as set forth herein. Capitalized terms
used herein and not defined herein are defined in the Corporation's Certificate
of Incorporation.
The Corporation will furnish without charge, to each stockholder who
so requests, a copy of the relevant provisions of the Corporation's Certificate
of Incorporation, which set forth the limitations and restrictions on ownership
of Equity Stock. Any such request may be addressed to the Secretary of the
Corporation or to the transfer agent named on the face hereof."
M. Severability. Each provision of this Article shall be severable and an
adverse judicial determination as to any such provision or a judicial
modification of such provision shall in no way affect the validity of any other
provisions.
N. Definitions. As used in these Articles, the following terms shall have the
meanings set forth below:
"Beneficial Ownership" shall mean beneficial ownership for U.S.
federal income tax purposes. The terms "Beneficial Owner," "Beneficially Owns"
and "Beneficially Owned" shall have the correlative meanings.
"Beneficiary" shall mean, with respect to any Trust, one or more
organizations described in each of Section 170(b)(l)(A) (other than clauses
(vii) and (viii) thereof) and Section 170(c)(2) of the Code that are named by
the Corporation as the beneficiary or beneficiaries of such Trust, in accordance
with the provisions of Section 4.D of this Article.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor thereto.
"Equity Stock" shall mean any and all shares, interests, participation
rights or other equivalents (however designated, whether voting or nonvoting) of
capital stock, membership interests or equivalent ownership interests in or
issued by the Corporation; it being understood that Equity Stock shall include
shares of Common Stock of the Corporation.
"GM Affiliate" shall have the meaning ascribed to such term in the
Separation Agreement.
"Hughes Affiliate" shall have the meaning ascribed to such term in the
Separation Agreement.
"Initial Stockholder" shall mean (i) Purchaser, an Australia
corporation, or (ii) any Qualified Subsidiary (as defined in the Stock Purchase
Agreement) of Purchaser that acquires any shares of capital stock of the
Corporation pursuant to the Stock Purchase Agreement or the Merger Agreement (as
defined in the Stock Purchase Agreement) or that acquires any shares of capital
stock of Hughes Electronics Corporation from Purchaser or a Qualified Subsidiary
of Purchaser.
"Market Price" of Equity Stock (or Excess Stock) means, on any date of
determination:
(i) if, at the date of determination, the security is listed on a
national securities exchange in the United States or is reported on the
NASDAQ-National Market System, then the Market Price shall be deemed to be
the Volume Weighted Average Trading Price if the security is listed on the
New York Stock Exchange and, if not so listed, shall be deemed to be the
Volume Weighted Average Trading Price of the daily sales prices as reported
on such national securities exchange other than the New York Stock Exchange
or on the NASDAQ-National Market System, as applicable, in each case for
the five (5) consecutive Trading Days preceding and ending on the Trading
Day immediately prior to the date of determination.
(ii) if, at the date of determination, the security is not so listed
or reported, but a "regular, active public market" exists for such security
(as determined in the good faith, sole discretion of the Board of
Directors, whose decision shall be conclusive and binding), then the Market
Price shall be deemed to be the Volume Weighted Average Trading Price of
the daily bid and ask quotations in the over-the-counter market for the
security for the five (5) consecutive Trading Days preceding and ending on
the Trading Day immediately prior to the date of determination. For
purposes of the foregoing, a market in which trading is sporadic and the
ask quotations generally exceed the bid quotations by more than 15% shall
not be deemed to be a "regular, active public market."
(iii) if, at the date of determination, neither clause (i) nor clause
(ii) of this definition applies, then the Market Price shall be deemed to
be the fair market value of the security as determined in the good faith,
sole discretion of the Board of Directors, whose determination shall be
conclusive and binding.
"Merger" shall have the meaning set forth in the Separation Agreement.
"Non-Transfer Event" shall mean an event (other than a purported
Transfer) that would cause or result in an increase in the percentage of any
Person's Beneficial Ownership of the outstanding shares of Equity Stock,
provided that the consummation of the transactions specifically contemplated by
the Transaction Agreements (and the receipt of Equity Stock in connection
therewith) shall not result in or constitute a "Non-Transfer Event."
"Permitted Transferees" shall mean any Person designated as a
Permitted Transferee in accordance with the provisions of Section 4.H of Article
IV.
"Person" shall mean (a) an individual or any corporation, partnership,
limited liability company, estate, trust, association, private foundation, joint
stock company or any other entity, (b) a "group" as the term is used for
purposes of Section 13(d)(3) of the Exchange Act; but shall not include an
underwriter that participates in a public offering of stock (including Equity
Stock) for a period of 90 days following purchase by such underwriter of such
stock, and (c) a "person" as such term is used in Section 355(e) of the Code.
"Prohibited Owner" shall mean, with respect to any purported Transfer or
Non-Transfer Event, any Person who is prevented from becoming or remaining the
owner of record title to shares of Equity Stock by the provisions of Section 4.A
of Article IV.
"Prohibited Party" shall mean, collectively, (x) any Person that engaged in
substantial negotiations, as defined for purposes of Section 355(e) of the Code,
with General Motors Corporation or the Corporation regarding an acquisition of
GM Class H common stock or Equity Stock during the two (2) year period preceding
the Split-Off and (y) (i) any Person from whom ownership of Equity Stock would
be attributed to the Person described in clause (x) hereof for purposes of
Section 355(e) of the Code and (ii) any member of a "coordinating group" as
defined in Treasury Regulation Section 1.355-7T(h)(4) (or any successor thereto)
that includes the Person described in clause (x) hereof (or any Person from whom
ownership of Equity Stock would be attributed to such member for purposes of
Section 355(e) of the Code); provided, however, that the term "Prohibited Party"
shall not include an Initial Stockholder or a Subsidiary of an Initial
Stockholder.
"Prohibition Period" shall mean the period beginning at the Split-Off
Effective Time and ending on the day after the date that is one year after the
date of the Split-Off Effective Time; provided that if, prior to the day after
the date that is one year after the date of the Split-Off Effective Time, a
Prohibited Party enters into an agreement, understanding, arrangement or
negotiations (collectively, an "Agreement") which contemplates a transaction
which, if consummated prior to such date, would constitute a Transfer or
Non-Transfer Event subject to the restrictions imposed by Section 4.A of Article
IV, then with respect to such Prohibited Party only, the Prohibition Period
shall be extended until the later to occur of one day after (i) the date that is
two (2) years after the date of the Split-Off Effective Time, and (ii) the date
which is six (6) months after the date such transaction is consummated or such
Agreement is terminated, as the case may be.
"Purported Beneficial Transferee" shall mean, with respect to any purported
Transfer of Beneficial Ownership of shares of Equity Stock that results in the
automatic conversion of such shares into Excess Stock, the purported transferee
of Beneficial Ownership of such shares if such purported Transfer had not been
prohibited by Section 4.A of Article IV.
"Purported Record Transferee" shall mean, with respect to any purported
Transfer of Beneficial Ownership of shares of Equity Stock that results in the
automatic conversion of such shares into Excess Stock, the purported record
transferee of such shares if such purported Transfer had not been prohibited by
Section 4.A of Article IV.
"Restricted Hughes Stock" shall mean capital stock of the Corporation
received by any Initial Stockholder or Tax-Related Party in exchange for shares
of GM Class H Common
Stock, par value $0.10 per share, or any other shares of General Motors
Corporation capital stock, in each case acquired after March 20, 2003.
"Separation Agreement" shall mean the Separation Agreement by and between
General Motors Corporation and the Corporation dated as of April 9, 2003, as in
effect on the date hereof.
"Split-Off" shall have the meaning set forth in the Separation Agreement.
"Split-Off Effective Time" shall have the meaning set forth in the
Separation Agreement.
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement by and
among The News Corporation Limited, the Corporation and General Motors
Corporation dated as of April 9, 2003, as in effect on the date hereof.
"Subsidiary" shall have the meaning set forth in the Stock Purchase
Agreement.
"Tax-Related Party" shall mean (i) any Person from whom ownership of Equity
Stock would be attributed to any Initial Stockholder for purposes of Section
355(e) of the Code and (ii) any member of a "coordinating group" as defined in
Treasury Regulation Section 1.355-7T(h)(4) (or any successor thereto) that
includes any Initial Stockholder (or any Person from whom ownership of Equity
Stock would be attributed to such member for purposes of Section 355(e) of the
Code).
"Trading Day" shall mean 9:30 a.m. through 4:00 p.m., Eastern Time, of any
day on which the principal national securities exchange on which any of the
shares of Equity Stock are listed or admitted to trading is open for the
transaction of business or, if none of the shares of Equity Stock are listed or
admitted to trading on any national securities exchange, any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.
"Transaction Agreements" shall have the meaning set forth in the Stock
Purchase Agreement.
"Transfer" (as a noun) shall mean any sale, transfer, gift, assignment,
devise or other disposition of Beneficial Ownership of Equity Stock, whether
voluntary or involuntary and whether by operation of law or otherwise; provided
that the consummation of the transactions specifically contemplated by the
Transaction Agreements (and the receipt of Equity Stock in connection therewith)
shall not result in or constitute a "Transfer"; provided, however, that,
notwithstanding the immediately proceeding proviso, the receipt of Equity Stock
in exchange for Restricted Hughes Stock in the Merger shall be a "Transfer".
"Transfer" (as a verb) shall have the correlative meaning.
"Trust" shall mean any separate trust created and administered in
accordance with the terms of Section 4 of Article IV, for the exclusive benefit
of any Beneficiary.
"Trustee" shall mean any Person, unaffiliated with both the Corporation and
any Prohibited Owner (and, if different than the Prohibited Owner, the Person
who would have had Beneficial Ownership of the Shares that would have been owned
of record by the Prohibited Owner), designated by the audit committee of the
Board of Directors to act as trustee of any Trust, or any successor trustee
thereof.
"Volume Weighted Average Trading Price" means, with respect to any Trading
Day, the weighted average of the reported per share prices at which transactions
in the relevant Equity Stock are executed on the New York Stock Exchange during
such Trading Day (weighted based on the number of shares of the relevant Equity
Stock traded), as such weighted average price appears on the Bloomberg screen
"Volume at Price" page for such Equity Stock.
ARTICLE V
Board of Directors
SECTION 1. Number; Series; Terms.
Except as otherwise fixed by or pursuant to the provisions of this
Certificate of Incorporation relating to the rights of the holders of any series
of Preferred Stock, the number of directors of the Corporation shall be
determined in accordance with the By-Laws of the Corporation. In addition, from
and after the Merger Effective Time (as defined in the Agreement and Plan of
Merger, dated as of April 9, 2003, by and among the Corporation, The News
Corporation Limited and GMH Merger Sub, Inc. (the "Merger Agreement")), the
directors shall be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be possible, of one-third
of the total number of directors constituting the entire Board of Directors. The
directors as of the Merger Effective Time and those directors elected or
appointed by the Board of Directors so as to take office in accordance with
Exhibit A to the Merger Agreement (or otherwise agreed upon in writing by and
among the parties to the Merger Agreement) not later than immediately following
the Merger Effective Time shall be designated into classes as set forth on
Exhibit A to the Merger Agreement. The term of the initial Class I directors
shall terminate on the date of the 2004/2/ annual meeting; the term of the
initial Class II directors shall terminate on the date of the 2005 annual
meeting; and the term of the initial Class III directors shall terminate on the
date of the 2006 annual meeting. At each succeeding annual meeting of
stockholders beginning in 2004, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office in
accordance with Section 2 of this Article V, but in no case will a decrease in
the number of directors shorten the term of any incumbent director. A director
shall hold office until the annual meeting for the year in which his or her term
expires and until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office.
- ------------
/2/ In the event that the Closing (as defined in the Stock Purchase Agreement)
does not occur prior to the 2004 annual meeting, the references to 2004 shall be
changed to 2005, 2005 to 2006 and 2006 to 2007.
SECTION 2. Vacancies.
Except as otherwise provided for or fixed by or pursuant to the provisions
of this Certificate of Incorporation relating to the rights of the holders of
any series of Preferred Stock, any vacancy on the Board of Directors of the
Corporation resulting from death, resignation, retirement, disqualification,
removal or other cause and any newly created directorship resulting from any
increase in the authorized number of directors between meetings of stockholders
shall be filled only in the manner provided in the By-Laws of the Corporation
or, if not so provided for therein, by the affirmative vote of (i) a majority of
all the directors then in office, even if less than a quorum, (ii) a duly
appointed committee of the Board of Directors, or (iii) in such other manner as
may be determined by the Board of Directors, but in any event not by the
stockholders. Any director so chosen shall hold office until the next meeting of
stockholders held for the election of directors, with such director's
replacement to be nominated for election at such meeting. Such director's
replacement who is elected at such meeting shall serve for the remainder of the
full term of the director or, from and after the Merger Effective Time, the
class of directors in which the vacancy occurred or the new directorship was
created and until a successor is duly elected and qualified or until his or her
earlier death, resignation, retirement, disqualification or removal from office
in accordance with this Certificate of Incorporation or any applicable law or
pursuant to an order of a court. If there are no directors in office, then an
election of directors may be held in the manner provided by the By-Laws of the
Corporation or, if not so provided for therein, by applicable law.
Notwithstanding the preceding two sentences, in the event any directors are
elected or appointed (including to fill vacancies resulting from any amendment
to the By-Laws of the Corporation) by the Board of Directors so as to take
office not later than immediately following the Merger Effective Time in
accordance with Exhibit A to the Merger Agreement (or otherwise agreed upon by
and among the parties to the Merger Agreement), such directors shall hold office
until the annual meeting for the year in which his or her term, based upon the
class to which such director is appointed, expires and until his or her
successor is duly elected and qualified or until his or her earlier death,
resignation, retirement, disqualification or removal from office in accordance
with this Certificate of Incorporation or any applicable law or pursuant to an
order of a court.
SECTION 3. Notice.
Advance notice of nominations for the election of directors and business to
be transacted at any stockholders meeting shall be given in the manner and to
the extent provided in the By-Laws of the Corporation.
SECTION 4. Removal.
Except as otherwise provided for or fixed by or pursuant to the provisions
of this Certificate of Incorporation relating to the rights of the holders of
any series of Preferred Stock and except for the automatic removal of a director
from office upon such director ceasing to meet any required qualifications for
directors contained in the By-Laws of the Corporation, no director may be
removed from office without cause and without the affirmative vote of the
holders of a majority of the combined voting power of the then outstanding
shares of stock of the Corporation entitled to vote for the election of
directors, voting together as a single class.
SECTION 5. Independent Directors; Related Party Transactions.
Except as provided for in Section 6 of this Article V, the Board of
Directors shall consist of at least a majority of independent directors (as
"independent director" may be defined from time to time in the By-Laws of the
Corporation).
Except as provided for in Section 6 of this Article V, from and after the
Merger Effective Time, (i) the audit committee of the Board of Directors shall
be comprised solely of independent directors who also satisfy such other
standard for service as may be set forth from time to time in the By-laws of the
Corporation, (ii) each of the nominating/corporate governance committee and the
compensation committee of the Board of Directors shall be comprised solely of
independent directors, and (iii) related party transactions (as "related party
transactions" may be determined from time to time by the audit committee of the
Corporation) between the Corporation and certain parties shall be subject to
approval by the audit committee of the Board of Directors.
SECTION 6. Standstill
Neither any member of the Purchaser Group nor any Purchaser Successor shall
enter into any transaction or series of transactions as a result of which the
members of the Purchaser Group, together with all Purchaser Successors,
collectively would have beneficial ownership (as such term is defined in Section
13(d) of the Exchange Act) in the aggregate of 50% or more of the outstanding
voting securities of the Corporation, unless:
(i) in connection therewith, such member of the Purchaser Group or
Purchaser Successor commences a tender or exchange offer for all of the
outstanding voting securities of the Corporation (at a price at least equal
to the market price thereof immediately prior to the earlier of the public
announcement or commencement thereof) or acquires, or enters into an
agreement to acquire, all of such voting securities pursuant to a merger or
other business combination transaction with the Corporation (it being
understood that the prohibitions set forth in the first sentence of this
Section 6 of this Article V shall not apply (A) to any such offer, merger
or transaction or (B) from and after the consummation of such offer, merger
or transaction if, but only if, as a result of the consummation thereof the
members of the Purchaser Group, together with any Purchaser Successor, have
beneficial ownership in the aggregate of 50% or more of the outstanding
voting securities of the Corporation);
(ii) such transaction or series of transactions is approved by an
affirmative vote of a majority of the "independent directors" of the Board
of Directors of the Corporation; or
(iii) a party that is not an Affiliate (as defined in the Stock
Purchase Agreement) of any member of the Purchaser Group or of any
Purchaser Successor acquires (and continues to hold), or has announced its
intention (and is currently seeking) to acquire, through any transaction or
series of transactions, including through any tender or exchange offer,
beneficial ownership in the aggregate of 25% or more of the outstanding
voting securities of the Corporation or has announced its intention (and is
currently seeking) to effect a merger or other business combination
transaction with the Corporation as a result of which such party would
become the beneficial owner of 25%
or more of the outstanding voting securities of the surviving corporation
of the merger or business combination, which merger or other business
combination has been approved by the Board of Directors of the Corporation;
provided, however, in the event that any member of the Purchaser Group or
any Purchaser Successor makes any such acquisition pursuant to the
exception provided in this clause (iii) then, unless such acquisition was
also in accordance with clause (i) or (ii) above or unless either of the
following paragraphs is also applicable, a majority of the Board of
Directors of the Corporation shall continue to consist of "independent
directors".
The requirements set forth in Section 5 and Section 6 of this Article V shall
cease to apply from and after the first to occur of (x) such time as a majority
of the independent directors so determines, (y) the acquisition of beneficial
ownership of 50% or more of the outstanding voting securities of the Corporation
under the circumstances described in clauses (i) or (ii) above or (z) the
members of the Purchaser Group and the Purchaser Successors acquire aggregate
beneficial ownership of 80% or more of the outstanding voting securities of the
Corporation.
In addition, the requirements set forth in Section 5 and Section 6 of this
Article V shall cease to apply from and after such time as any of the four
persons specified on Exhibit A to the Merger Agreement in Column I thereto (the
"Specified Directors") (or any successor thereto specified in writing to the
nominating/corporate governance committee of the Board of Directors by a
majority of the Specified Directors or their successors then in office) (1) is
not, to the extent that the directors in the Class of such Specified Director
are up for election at any annual or special meeting of stockholders, nominated
by the nominating/corporate governance committee for election to the Board of
Directors at such annual or special meeting of stockholders or (2) ceases to be
a Director between stockholder meetings and the nominating/corporate governance
committee of the Board of Directors fails to appoint as a Director to fill such
vacancy a person that was specified in writing to such committee by a majority
of the Specified Directors (or their successors) then in office, unless, at such
time, (A) the Purchaser Group and the Purchaser Successors have beneficial
ownership, in the aggregate, of less than 17% of the outstanding voting
securities of the Corporation or (B) the Purchaser (together with any Qualified
Subsidiary) has disposed of, in the aggregate, 25% or more of the securities of
the Corporation acquired by the Purchaser and any Qualified Subsidiary pursuant
to the Stock Sale and the Merger (giving effect to any anti-dilution
adjustments).
Any calculation as to the beneficial ownership of the outstanding voting
securities of any Person shall be determined in good faith by the Board of
Directors of the Corporation.
As used in these Articles, the following terms shall have the meanings set forth
below:
"Purchaser Group" shall mean Purchaser, Subsidiaries of Purchaser or
Purchaser Successors and (i) K. Rupert Murdoch and any executor, administrator,
guardian, conservator or similar legal representative thereof, (ii) any member
of the immediate family of K. Rupert Murdoch, (iii) Cruden Investments Pty.
Limited, an Australian company, and any successor (by merger, consolidation,
transfer of assets or otherwise) to all or substantially all of its business and
assets, (iv) any settlement and trusts, and any entities which are controlled by
settlements and trusts, set up for the benefit of K. Rupert Murdoch or members
of his family (exclusively or
also for the benefit of others) and (v) any Person acting as agent for
Purchaser, any Subsidiary of Purchaser, any Purchaser Successor or any Person
described in clauses (i) through (iv) hereof.
"Purchaser Successor" shall mean any Person to whom any member of the
Purchaser Group transfers (other than pursuant to open market transactions) more
than 10% of the outstanding voting securities of the Corporation or any
successor of any such Person.
ARTICLE VI
Stockholder Action; No Cumulative Voting
SECTION 1. Meetings; Written Consent.
Subject to any rights provided to the holders of any outstanding series of
Preferred Stock, any action required or permitted to be taken by the
stockholders of the Corporation shall be effected (i) at a duly called annual or
special meeting of stockholders of the Corporation, (ii) by written consent or
consents setting forth the action so taken, signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted, or (iii) as otherwise may be permitted
under the DGCL, as such law may be amended from time to time. Subject to any
rights provided to the holders of any outstanding series of Preferred Stock to
call special meetings of the holders of such series, special meetings of
stockholders of the Corporation may be called as provided in the By-Laws of the
Corporation. Notwithstanding the foregoing, whenever the holders of any one or
more outstanding series of Preferred Stock shall have the right, voting
separately by class or series, as applicable, to elect directors at an annual or
special meeting of stockholders, the calling of special meetings of the holders
of such class or series shall be governed by the terms of the applicable
resolution or resolutions of the Board of Directors establishing such series of
Preferred Stock pursuant to Article IV of this Certificate of Incorporation.
SECTION 2. No Cumulative Voting.
Shares of capital stock of the Corporation shall not be entitled to
cumulative voting.
ARTICLE VII
By-Laws
Except as provided therein, the Board of Directors shall have the power to
adopt, alter, amend or repeal the By-Laws of the Corporation. Except as provided
for therein, the stockholders of the Corporation may adopt, amend or repeal the
By-Laws of the Corporation but only by the affirmative vote of holders of at
least a majority of the combined voting power of the then outstanding shares of
capital stock of all classes and series of the Corporation entitled to vote
generally on matters requiring the approval of stockholders, voting together as
a single class.
ARTICLE VIII
Amendments
The Corporation reserves the right at any time from time to time to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, and any other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article VIII. Notwithstanding anything to the contrary contained in this
Certificate of Incorporation, Section 4 of Article IV, Sections 5 and 6 of
Article V and Article VIII of this Certificate of Incorporation shall not be
amended, altered, changed or repealed and no provision inconsistent therewith
shall be adopted without (x) the affirmative vote of at least a majority of the
Directors, including at least a majority of independent directors (as such term
is used in Section 5 of Article V hereof), then serving on the Board and (y) the
affirmative vote of the holders of at least seventy-five percent (75%) of the
voting power of all of the then outstanding shares entitled to vote generally on
matters requiring approval of stockholders.
ARTICLE IX
Indemnification; Limitation of Liability.
SECTION 1. Indemnification.
The Corporation shall indemnify its directors and officers to the fullest
extent authorized or permitted by law, as now or hereafter in effect, and such
right to indemnification shall continue as to a person who has ceased to be a
director or officer of the Corporation and shall inure to the benefit of his or
her heirs, executors and personal and legal representatives; provided, however,
that, except for proceedings to enforce rights to indemnification, the
Corporation shall not be obligated to indemnify any director or officer (or his
or her heirs, executors or personal or legal representatives) in connection with
a proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the Board of Directors. The
right to indemnification conferred by this Section 1 shall include the right to
be paid by the Corporation the expenses incurred in defending or otherwise
participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred
in this Section 1 to directors and officers of the Corporation.
The rights to indemnification and to the advance of expenses conferred in
this Section 1 shall not be exclusive of any other right which any person may
have or hereafter acquire under this Certificate of Incorporation, the By-Laws
of the Corporation, any statute, agreement, vote of stockholders or
disinterested directors or otherwise.
Any repeal or modification of this Section 1 by the stockholders of the
Corporation shall not adversely affect any rights to indemnification and to the
advancement of expenses of a director or officer of the Corporation existing at
the time of such repeal or modification with respect to any acts or omissions
occurring prior to such repeal or modification.
SECTION 2. Limited Liability.
No director of the Corporation shall be liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that this provision does not eliminate the liability of the
director (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. For purposes of the prior sentence, the
term "damages" shall, to the extent permitted by law, include without
limitation, any judgment, fine, amount paid in settlement, penalty, punitive
damages, excise or other tax assessed with respect to an employee benefit plan,
or expense of any nature (including, without limitation, counsel fees and
disbursements). Each person who serves as a director of the Corporation while
this Section 2 is in effect shall be deemed to be doing so in reliance on the
provisions of this Section 2, and neither the amendment or repeal of this
Section 2, nor the adoption of any provision of this Certificate of
Incorporation inconsistent with this Section 2, shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation
for, arising out of, based upon, or in connection with any acts or omissions of
such director occurring prior to such amendment, repeal, or adoption of an
inconsistent provision. The provisions of this Section 2 are cumulative and
shall be in addition to and independent of any and all other limitations on or
eliminations of the liabilities of directors of the Corporation, as such,
whether such limitation or eliminations arise under or are created by any law,
rule, regulation, by-law, agreement, vote of stockholders or disinterested
directors, or otherwise.
ARTICLE X
Miscellaneous
SECTION 1. Section 203 of the DGCL
The Corporation hereby elects that it shall not be subject to Section 203
of the DGCL or any successor provision.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed on its behalf this ___ day of____,
200__.
HUGHES ELECTRONICS
CORPORATION
By:
---------------------------------
Name:
Title: