Tender-Offer Solicitation/Recommendation Statement — Schedule 14D-9 Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: SC 14D9 Solicitation/Recommendation Statement Under HTML 46K Section 14(D)(4)
2: EX-99.(A)(1)(A) Summary Publication Dated May 20, 2005 HTML 19K
3: EX-99.(A)(1)(B) Letter to Stockholders Dated May 20, 2005 HTML 7K
4: EX-99.(A)(2) Press Release Dated May 19, 2005 HTML 8K
SC 14D9 — Solicitation/Recommendation Statement Under Section 14(D)(4)
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing
Persons)
o
Check the box if the filing relates solely to preliminary
communications made before the
commencement of a tender offer.
Item 1.
Subject Company Information
The name of the subject company is General Motors Corporation, a
Delaware corporation (“General Motors” or the
“Corporation”). General Motors’ principal
executive offices are located at 300 Renaissance Center,
Detroit, Michigan48265-3000, and its telephone number at this
address is (313) 556-5000.
The class of equity securities to which this Schedule 14D-9
(this “Schedule”) relates is General Motors’
common stock, par value
$12/3 per
share (the “Common Stock”).
As of April 8, 2005, there were 565,471,821 shares of
Common Stock issued and outstanding.
Item 2.
Identity and Background of Filing Person
The name and address of the Corporation, which is the person
filing this Schedule, are set forth in Item 1 above.
This Schedule relates to the tender offer by Tracinda
Corporation, a Nevada corporation (“Tracinda”), as
disclosed in a Tender Offer Statement on Schedule TO filed
by Tracinda (the “Schedule TO”) with the United
States Securities and Exchange Commission (the “SEC”)
on May 9, 2005, to purchase up to 28 million shares of
Common Stock at a purchase price of $31.00 per share, in
cash (the “Offer Price”), on the terms and subject to
the conditions set forth in the Offer to Purchase dated
May 9, 2005 (the “Offer to Purchase”), and the
related Letter of Transmittal (which, collectively with any
amendments or supplements thereto, constitute the
“Offer”). As set forth in the Schedule TO, the
principal executive offices of Tracinda are located at
150 South Rodeo Drive, Suite 250, Beverly Hills,
California90212.
Item 3.
Past Contacts, Transactions, Negotiations and
Agreements
To the knowledge of the Corporation, as of the date of this
Schedule, there are no material agreements, arrangements or
understandings or any actual or potential conflicts of interest
between the Corporation or its affiliates and (1) the
Corporation, its executive officers, directors or affiliates
(except for agreements, arrangements or understandings and
actual or potential conflicts of interest discussed on
pages 7 through 24 of General Motors’ Proxy Statement
filed on Schedule 14A with the SEC on April 29, 2005
and incorporated herein by reference) or (2) Tracinda and
its executive officers, directors or affiliates.
Item 4.
The Solicitation or Recommendation
According to the Schedule TO, Tracinda, wholly owned by
Kirk Kerkorian, and 250 Rodeo, Inc., wholly owned by
Tracinda and Mr. Kerkorian, collectively owned
22 million shares of Common Stock, representing
approximately 3.89% of the outstanding shares of Common Stock as
of May 4, 2005. On May 4, 2005, Tracinda issued a
press release announcing that it proposed to acquire
28 million shares of Common Stock at a price of
$31.00 per share, which would result in Tracinda (or any
group of which it is a member) being the beneficial owner of
approximately 8.84% of the outstanding shares of the Common
Stock.
Tracinda’s May 4, 2005 press release is set forth
below:
Tracinda Announces Tender for General Motors Shares
LOS ANGELES, CA — May 4, 2005 —
Tracinda Corporation today announced that it intends to make a
cash tender offer for up to 28,000,000 shares of common
stock, par value
$12/3 per
share, of General Motors Corporation (NYSE: GM) at a price
of $31.00 per share. The offer price is without regard to
General Motors’ regular quarterly dividend of $.50 per
share expected to be paid in June 2005. Accordingly,
stockholders will be entitled to retain the dividend expected to
be paid in June 2005. The offer price, including the regular
quarterly dividend, represents an approximately 13.43% premium
over General Motors’ closing stock price of $27.77 on
May 3, 2005. The tender offer will be subject to customary
conditions for transactions of this type. The tender offer will
not be subject to any financing condition or any other
non-customary conditions.
1
Tracinda Corporation, of which Mr. Kirk Kerkorian is the
sole stockholder, currently owns 22,000,000 shares of
General Motors common stock, which represents approximately
3.89% of the outstanding shares. Tracinda’s average cost
for such shares is approximately $26.33 per share.
The shares to be purchased pursuant to the offer represent
approximately 4.95% of the outstanding shares of General Motors
common stock. Upon completion of the offer, Tracinda would
beneficially own 50,000,000 shares of General Motors common
stock, or approximately 8.84% of the outstanding shares.
Tracinda will hold the General Motors common stock for
investment purposes.
Tracinda became aware of rumors over the weekend concerning its
possible purchase of shares of General Motors stock. Since
Tracinda’s acquisition of General Motors stock is solely
for investment purposes, it decided to go forward with this
tender offer to remove any uncertainty in the marketplace as to
its investment intent.
Once the tender offer is commenced, offering materials will be
mailed to General Motors stockholders and filed with the
Securities and Exchange Commission. General Motors stockholders
are urged to read the offering materials when they become
available because they will contain important information.
THIS DOCUMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION
OF AN OFFER TO SELL SECURITIES. TRACINDA HAS NOT YET COMMENCED
THE TENDER OFFER DESCRIBED HEREIN. THE TENDER OFFER WILL BE MADE
ONLY THROUGH AN OFFER TO PURCHASE AND RELATED LETTER OF
TRANSMITTAL. INVESTORS AND SECURITY HOLDERS ARE STRONGLY ADVISED
TO READ THIS TENDER OFFER STATEMENT OF TRACINDA AND THE RELATED
LETTER OF TRANSMITTAL WHEN SUCH DOCUMENTS ARE FILED AND BECOME
AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. THE
TENDER OFFER STATEMENT WILL BE FILED BY TRACINDA WITH THE
SECURITIES AND EXCHANGE COMMISSION (“SEC”). INVESTORS
AND SECURITY HOLDERS MAY OBTAIN A FREE COPY OF THIS STATEMENT
(WHEN FILED AND AVAILABLE) AND OTHER RELEVANT DOCUMENTS ON THE
SEC’S WEB SITE AT: HTTP:// WWW.SEC.GOV. THE TENDER OFFER
STATEMENT AND RELATED MATERIALS MAY ALSO BE OBTAINED FOR FREE BY
DIRECTING SUCH REQUESTS TO TRACINDA.
* * * * *
On May 4, 2005, Jerome York, a consultant retained by
Tracinda, contacted Robert Lutz, Vice Chairman, Global Product
Development of the Corporation, to inform him of the press
release and to emphasize Tracinda’s investment intent.
Later that day, John Devine, Vice Chairman and Chief Financial
Officer of the Corporation, contacted Mr. York to discuss
Tracinda’s press release. The Corporation has had no other
material discussions with Tracinda or Mr. Kerkorian prior
to or after the issuance of this press release.
On May 9, 2005, Tracinda commenced the Offer with the
publication of a newspaper advertisement and the filing of a
Schedule TO with the SEC.
At a regularly scheduled meeting of the Board of Directors of
the Corporation (the “Board”) on May 9, 2005, the
Board reviewed and considered the Offer, which had been
commenced earlier that day, and various matters related thereto.
At this meeting, the Board reviewed generally the terms and
conditions of the Offer, the proposed timeline for the Offer,
the percentage of the shares of Common Stock currently owned by
Tracinda and the percentage stake in the Corporation sought to
be acquired by Tracinda in the Offer, the fact that Tracinda had
indicated its intent to hold the shares for investment purposes
and the investment history of Tracinda and/or Mr. Kerkorian
with respect to other companies. The Board also reviewed the
Corporation’s obligation pursuant to the federal securities
laws to issue a statement on Schedule 14D-9 within ten
business days of the commencement of the Offer.
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At a special meeting of the Board on May 19, 2005, the
Board further reviewed and considered the Offer. The Board
reviewed the terms and conditions of the Offer as disclosed in
the Schedule TO, including: the proposed timeline for the
Offer; the percentage of the shares of Common Stock currently
owned by Tracinda; the percentage stake in the Corporation
sought to be acquired by Tracinda in the Offer; the fact that
Tracinda had indicated its intent to hold the shares of Common
Stock acquired in the Offer for investment purposes; the
potential proration mechanism of the Offer in the event of
oversubscription; the potential tax consequences to the
stockholders as a result of participating in the Offer; the
circumstances under which the amount of shares of Common Stock
sought to be acquired in the Offer could be increased; and the
circumstances under which the Offer could be extended or other
terms and conditions of the Offer could be changed. The Board
reviewed certain regulatory approval requirements and other
regulatory consequences associated with any stockholder
acquiring a controlling influence in the Corporation. These
regulatory issues arise from the Corporation’s ownership of
a federal savings bank and other banking institutions that are
subject to regulation by various federal, state and foreign
government agencies. The Board also took note of the filing
requirements under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976. Representatives of
Goldman, Sachs & Co. (“Goldman Sachs”) and
Morgan Stanley & Co. Incorporated (“Morgan
Stanley”), financial advisors to the Corporation, reviewed
with the Board recent Common Stock price performance and trading
activity, the impact of the Offer on the market price of the
Common Stock, various other tender offers by Tracinda and/or
Mr. Kerkorian and certain factors influencing the current
market price of the Common Stock. Management then reviewed with
the Board its assessment of the Offer. The Board then considered
the Corporation’s obligation pursuant to the federal
securities laws to issue a statement on Schedule 14D-9 and
made the determination discussed below.
The Board determined by unanimous vote of all those directors
present that the Corporation would express no opinion and would
be neutral with respect to the Offer. Accordingly, the
Corporation has not made a determination as to whether the Offer
is fair to, or in the best interests of, its stockholders and is
not making a recommendation regarding whether the
Corporation’s stockholders should participate in the Offer.
The Corporation urges each stockholder to make its own decision
regarding the Offer, including, among other things, the adequacy
of the Offer price, based on all of the available information
and in light of the stockholder’s own investment
objectives, the stockholder’s view with respect to the
Corporation’s prospects and outlook, the matters considered
by the Board, as noted below, and any other factors that the
stockholder deems relevant to its investment decision.
For the following reasons and based on these factors, the Board
determined that the Corporation would express no opinion to its
stockholders and would be neutral with respect to the Offer:
(1) Tracinda seeks a relatively small percentage of the
outstanding shares of Common Stock pursuant to the Offer
(approximately 4.95%) and, according to the information set
forth in the Offer to Purchase, the Offer would result in
Tracinda (or any group of which it is a member) being the
beneficial owner of approximately 8.84% of the outstanding
shares of Common Stock;
(2) Tracinda has stated that its intention is to acquire
the shares of Common Stock for investment purposes and that it
does not have a present intent to acquire or influence control
over the business of the Corporation;
(3) the relatively small percentage of Common Stock sought
by Tracinda, coupled with Tracinda’s intent to hold the
Common Stock for investment purposes, would not be expected to
interfere with the Corporation’s ability to pursue its
strategic business objectives;
(4) holders of shares of Common Stock tendered and accepted
pursuant to the Offer will be precluded, with respect to shares
of Common Stock purchased in the Offer, from having the
opportunity to participate in any future benefits arising from
continued ownership of those shares of Common Stock, including
any potential future earnings growth of the Corporation and any
subsequent increase in the market value of those shares of
Common Stock;
(5) based on the per share closing price of $27.77 of the
Common Stock on the New York Stock Exchange Composite Tape on
May 3, 2005, the last trading day before the announcement
of Tracinda’s
3
intention to make the Offer, the indicated premium reflected in
the price offered for such shares pursuant to the Offer,
including the regular quarterly dividend, was 13.43%; and
(6) the per share closing price of the Common Stock on the
New York Stock Exchange Composite Tape was $31.61 on
May 18, 2005, and the historical per share closing prices
of the Common Stock on the New York Stock Exchange Composite
Tape ranged from $25.60 to $40.30 during the period from
January 1, 2005 through May 18, 2005.
You should understand that the Board did not find it
practicable, and did not attempt, to quantify, rank or otherwise
assign relative weight to the foregoing reasons and factors, and
different members of the Board may have given different weight
to different reasons and factors in reaching their individual
conclusions.
The fact that the Corporation is not expressing an opinion and
is neutral with respect to the Offer is not, and should not be
interpreted to be, any indication of the position the
Corporation would take with respect to any effort by Tracinda
(or any group of which it is a member) or any other person to
take any actions to further increase its holdings in the
Corporation, or to seek by any means to exercise control of, or
a controlling influence with respect to, the Corporation.
A copy of the Corporation’s summary publication
communicating the Board’s position and a press release by
the Corporation relating thereto are filed as
Exhibits (a)(1)(A) and (a)(2) hereto and are incorporated
herein by reference.
As a result of trading restrictions under the Corporation’s
internal corporate policies, the directors, executive officers,
affiliates and subsidiaries of the Corporation are currently
precluded from purchasing or selling any securities of the
Corporation, including by tendering Common Stock into the Offer.
Item 5.
Persons/ Assets Retained, Employed, Compensated or
Used
The Corporation has been receiving advice from Goldman Sachs and
Morgan Stanley in connection with the Offer. The Corporation
expects that it will pay the financial advisors reasonable and
customary compensation for their advisory services in connection
with the Offer but has not yet agreed to the financial terms for
such advisory services. The Corporation has agreed that it will
indemnify Goldman Sachs and Morgan Stanley against certain
liabilities arising out of or in connection with their advisory
services related to the Offer.
The Corporation has also retained Morrow & Co., Inc.
(“Morrow”) to assist the Corporation in communications
with stockholders. The Corporation will pay Morrow approximately
$12,500 for services rendered in connection with the Offer and
has agreed to reimburse Morrow for certain expenses they may
incur in connection therewith.
Except as described above, neither the Corporation nor any
person acting on its behalf has employed, retained, compensated
or used any person to make solicitations or recommendations to
security holders of the Corporation with respect to the Offer.
Item 6.
Interest in Securities of the Subject Company
No transactions in Common Stock have been effected during the
past 60 days by the Corporation or any of its subsidiaries
or, to the best of the Corporation’s knowledge, except as
set forth below, by any executive officer, director or affiliate
of the Corporation.
On March 21, 2005, G. Richard Wagoner, Jr., the
Corporation’s Chairman and Chief Executive Officer,
purchased 50,000 shares of Common Stock in the open market,
47,100 shares of which were purchased at a price of
$29.65 per share, 1,900 shares of which were purchased
at a price of $29.57 per share and 1,000 shares of
which were purchased at a price of $29.60 per share.
On March 23, 2005, Thomas J. Kowaleski, the
Corporation’s Vice President of Communications, purchased
200 shares of Common Stock in the open market at a price of
$29.28 per share.
4
Item 7.
Purposes of the Transaction and Plans or Proposals
The Corporation is not undertaking or engaged in any
negotiations in response to the Offer that relate to: (i) a
tender offer or other acquisition of the Corporation’s
securities by the Corporation, any of its subsidiaries or any
other person; (ii) any extraordinary transaction, such as a
merger, reorganization or liquidation, involving the Corporation
or any of its subsidiaries; (iii) any purchase, sale or
transfer of a material amount of assets of the Corporation or
any of its subsidiaries; or (iv) any material change in the
present dividend rate or policy, indebtedness or capitalization
of the Corporation.
There are no transactions, board resolutions, agreements in
principle or signed contracts in response to the Offer that
relate to or would result in one or more of the matters referred
to in the first paragraph of this Item 7.
The Board and management of the Corporation remain committed to
enhancing value for all of the Corporation’s stockholders
and will continue to communicate with stockholders regarding
these matters.
Item 8.
Additional Information
Not applicable.
Item 9.
Material to be Filed as Exhibits
Exhibit No.
Description
(a)(1)(A)
Summary Publication of General Motors Corporation dated
May 20, 2005.
(a)(1)(B)
Letter to Stockholders of General Motors Corporation dated
May 20, 2005.
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is
true, complete and correct.
