Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K+KifSyfwhP47xqOhgqG21gAUgEUHF2B7METxysGfUERt/gkX06+7PnfEc44Gk2T DGIYFI/+6At5+lHEeQCvSA== 0001193125-05-126744.txt : 20050617 0001193125-05-126744.hdr.sgml : 20050616 20050617061448 ACCESSION NUMBER: 0001193125-05-126744 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050617 DATE AS OF CHANGE: 20050617 GROUP MEMBERS: 250 RODEO, INC. GROUP MEMBERS: KIRK KERKORIAN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MOTORS CORP CENTRAL INDEX KEY: 0000040730 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLES & PASSENGER CAR BODIES [3711] IRS NUMBER: 380572515 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-42630 FILM NUMBER: 05901418 BUSINESS ADDRESS: STREET 1: 300 RENAISSANCE CTR STREET 2: MAIL CODE: 482-C34-D71 CITY: DETROIT STATE: MI ZIP: 48265-3000 BUSINESS PHONE: 3135565000 MAIL ADDRESS: STREET 1: 300 RENAISSANCE CTR STREET 2: MAIL CODE: 482-C34-D71 CITY: DETROIT STATE: MI ZIP: 48265-3000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TRACINDA CORP CENTRAL INDEX KEY: 0000319029 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: NV FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 150 RODEO DRIVE SUITE 250 CITY: BEVERLY HILLS STATE: CA ZIP: 90212 BUSINESS PHONE: 7027378060 MAIL ADDRESS: STREET 1: 150 RODEO DRIVE SUITE 250 CITY: BEVERLY HILLS STATE: CA ZIP: 90212 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under The Securities Exchange Act of 1934

General Motors Corporation

(Name of Issuer)

Common Stock, par value $1-2/3 per share

(Title of Class of Securities)

370442105

(CUSIP Number)

Richard Sobelle, Esq.

Tracinda Corporation

150 South Rodeo Drive, Suite 250

Beverly Hills, CA 90212

(310) 271-0638

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 7, 2005

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 370442105


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Tracinda Corporation
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Nevada

Number of

Beneficially

Owned by

Each

Reporting

Person

With

7. Sole Voting Power

33,147,452

8. Shared Voting Power

7,613,700

9. Sole Dispositive Power

33,147,452

10. Shared Dispositive Power

7,613,700


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 40,761,152
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) 7.2% *
14.	Type of Reporting Person (See Instructions) CO

*	Percentage calculated on the basis of 565,476,036 shares of common stock issued and outstanding on April 30, 2005, as set forth in General Motors’ Form 10-Q filed on May 10, 2005, for the period ending March 31, 2005.

CUSIP No. 370442105


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Kirk Kerkorian
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) N/A
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization United States

Number of

Beneficially

Owned by

Each

Reporting

Person

With

7. Sole Voting Power

40,761,152

8. Shared Voting Power

9. Sole Dispositive Power

40,761,152

10. Shared Dispositive Power


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 40,761,152
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) 7.2% *
14.	Type of Reporting Person (See Instructions) IN

*	Percentage calculated on the basis of 565,476,036 shares of common stock issued and outstanding on April 30, 2005, as set forth in General Motors’ Form 10-Q filed on May 10, 2005, for the period ending March 31, 2005.

CUSIP No. 370442105


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). 250 Rodeo, Inc.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) WC
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware

Number of

Beneficially

Owned by

Each

Reporting

Person

With

7. Sole Voting Power

7,613,700

8. Shared Voting Power

9. Sole Dispositive Power

7,613,700

10. Shared Dispositive Power


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 7,613,700
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) 1.3% *
14.	Type of Reporting Person (See Instructions) CO

*	Percentage calculated on the basis of 565,476,036 shares of common stock issued and outstanding on April 30, 2005, as set forth in General Motors’ Form 10-Q filed on May 10, 2005, for the period ending March 31, 2005.

Item 1. Security and Issuer

This Schedule 13D relates to the common stock, par value $1-2/3 per share of General Motors Corporation, which has its principal executive office at 300 Renaissance Center, Detroit, Michigan 48265.

Item 2. Identity and Background

This Schedule is being filed on behalf of Kirk Kerkorian, Tracinda Corporation, a Nevada corporation wholly owned by Mr. Kerkorian, and 250 Rodeo Inc., a Delaware corporation wholly owned by Mr. Kerkorian and Tracinda (collectively, the “Filing Persons”). Tracinda and 250 Rodeo are both principally engaged in the business of buying, selling and holding selected equity securities.

The principal business address for both Tracinda and 250 Rodeo is 150 South Rodeo Drive, Suite 250, Beverly Hills, California 90212. During the past five years, neither Tracinda nor 250 Rodeo (i) has been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors), and (ii) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(a) Mr. Kerkorian is the Chief Executive Officer and sole director of Tracinda and 250 Rodeo. Tracinda’s and 250 Rodeo’s other executive officer is Anthony L. Mandekic.

(b) Mr. Kerkorian’s and Mr. Mandekic’s business address is 150 South Rodeo Drive, Suite 250, Beverly Hills, California 90212.

(c) Mr. Kerkorian’s principal occupation or employment is serving as Tracinda’s principal executive officer. In addition, Mr. Kerkorian is a director of MGM MIRAGE, a Delaware corporation principally engaged in the lodging and gaming business. Mr. Kerkorian beneficially owns, through Tracinda, 158,392,864 shares of common stock of MGM MIRAGE, or approximately 55% of such outstanding common stock. MGM MIRAGE has its principal executive offices at 3600 Las Vegas Boulevard, Las Vegas, Nevada 89109.

Mr. Mandekic’s principal occupation or employment is, and has been for more than five years, serving as Secretary and Treasurer of Tracinda.

(d) – (e) During the last five years, neither Mr. Kerkorian nor Mr. Mandekic (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) Mr. Kerkorian and Mr. Mandekic are both United States citizens.

Item 3. Source and Amount of Funds or Other Consideration

The purchase price for the 40,761,152shares of common stock (the “shares”) beneficially owned by the Filing Persons was funded from cash and cash equivalents on hand.

Item 4. Purpose of Transaction

The Filing Persons acquired the shares for investment purposes and do not have a present intent to acquire or influence control over the business of General Motors. The Filing Persons may, from time to time, acquire additional shares or dispose of some or all of their shares or may continue to hold the shares, depending on business and market conditions, their continuing evaluation of the business and prospects of General Motors and other factors. Other than as set forth in this Item 4, the Filing Persons do not have any current plans, proposals or negotiations that relate to or would result in any of the matters referred to in paragraphs (a) through (j) of Item 4 of Schedule 13D.

Item 5. Interest in Securities of the Issuer

(a) – (b) The following table sets forth information with respect to the shares beneficially owned by each person or entity named in Item 2 hereof. Mr. Kerkorian has sole voting and investment power with respect to the shares held by the Filing Persons.


Name	Number of Shares	Percent of Outstanding(1)
Tracinda Corporation	40,761,152	7.2%

250 Rodeo, Inc.	7,613,700	1.3%

Kirk Kerkorian	40,761,152	7.2%

Anthony L. Mandekic	-0-	0%

(1) *

Computed on the basis of 565,476,036 shares of common stock issued and outstanding on April 30, 2005, as set forth in General Motors’ Form 10-Q filed on May 10, 2005, for the period ending March 31, 2005.

(c) The table included in Appendix A sets forth transactions in shares by Tracinda and 250 Rodeo during the past 60 days. All such transactions, other than the purchase of 18,761,152 shares, pursuant to Tracinda’s Offer to Purchase common stock of General Motors filed on Schedule TO on May 9, 2005, were effected in the open market. In addition, an additional 165,405 shares were tendered in such offer pursuant to notices of guaranteed deliveries. The guarantors failed to deliver these shares.

(d) Except as described in Item 6, No person other than the Filing Persons has the right to receive or power to direct the receipt of dividends from, or the proceeds of the sale of any of the shares.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Tracinda has entered into consulting and value sharing agreements with Jerome York. Copies of the consulting and value sharing agreements are attached hereto as Exhibits 1 and 2 and incorporated herein by reference.

Except as described above, there are no contracts, arrangements, understanding or relationships (legal or otherwise) among the persons named in Item 2 hereof and between such persons and any other person with respect to any securities of the Company, including but not limited to transfer or voting of any such securities, finder’s fees, joint ventures, loan or option arrangements, put or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

Item 7. Material to Be Filed as Exhibits


Exhibit No.		Description
1		Agreement for Services dated as of April 19, 2005 between Jerome York and Tracinda Corporation

2		Value Sharing Agreement dated as of April 19, 2005 between Jerome York and Tracinda Corporation

SIGNATURE

After reasonable 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.

June 17, 2005


TRACINDA CORPORATION

By:		/S/ Anthony L. Mandekic
		Anthony L. Mandekic Secretary/Treasurer

KIRK KERKORIAN

By:		/S/ Anthony L. Mandekic
		Anthony L. Mandekic Attorney-in-Fact *

250 RODEO, INC.

By:		/S/ Anthony L. Mandekic
		Anthony L. Mandekic Secretary/Treasurer

*	Power of Attorney previously filed as Exhibit (i) to Schedule TO/A, filed by Tracinda Corporation on May 26, 2005.

Appendix A

The following table sets forth transactions in General Motors shares by Tracinda and 250 Rodeo during the last 60 days. Except for those 18,761,152 shares that were purchased pursuant to Tracinda’s Offer to Purchase General Motors shares filed under Schedule TO on May 9, 2005 (see below), all transactions were effected in the open market.

Tracinda Corporation


Date	No. of Shares	Price per Share

4/22/05	88	$	25.86
	6,525		25.88
	13,227		25.90
	3,354		25.95
	5,291		25.96
	2,381		26.00
	96,998		26.20
	22,045		26.21
	48,500		26.27
	88,180		26.30
	26,454		26.31
	44,090		26.36
	83,795		26.45
	35,272		26.47
	68,780		26.51
	248,668		26.60
	83,771		26.61
	214,277		26.63
	12,345		26.64
	450,688		26.65
	156,079		26.66
	230,943		26.67
	123,452		26.68
	126,097		26.77
4/25/05	21,200		26.03
	8,800		26.04
	15,000		26.05
	2,600		26.08
	22,500		26.09
	38,500		26.10
	16,000		26.11
	28,100		26.12
	27,100		26.13
	17,000		26.14
	34,900		26.15
	20,500		26.17
	37,000		26.18
	117,000		26.19
	663,400		26.20
	19,600		26.22
	22,100		26.23
	9,400		26.24
	67,100		26.25

Tracinda Corporation


Date	No. of Shares	Price per Share
	5,000	$	26.26
	800		26.27
	7,700		26.29
	21,100		26.30
	13,200		26.31
	9,600		26.32
	8,900		26.34
	79,200		26.35
	21,000		26.36
	300		26.37
	1,900		26.38
	24,400		26.39
	43,100		26.40
	9,900		26.41
	8,700		26.42
	21,000		26.43
	9,000		26.44
	41,300		26.45
	47,800		26.46
	23,800		26.47
	41,900		26.48
	10,000		26.49
	27,600		26.50
	25,000		26.57
	11,600		26.59
	55,700		26.60
	22,500		26.61
	200		26.62
	71,000		26.63
	3,700		26.67
	61,300		26.70
	70,800		26.73
	238,200		26.74
	151,000		26.75
4/26/05	1,800		26.25
	18,200		26.26
	5,000		26.27
	400		26.28
	4,600		26.29
	10,700		26.30
	73,200		26.31
	35,300		26.34
	5,500		26.35
	10,000		26.39
	239,000		26.40
	32,900		26.42
	187,000		26.43
	83,000		26.44

Tracinda Corporation


Date	No. of Shares	Price per Share
	411,800	$	26.45
	13,600		26.46
	35,300		26.47
	35,000		26.48
	9,800		26.49
	1,059,100		26.50
	605,700		26.51
	21,700		26.52
	25,400		26.53
	97,000		26.55
4/27/05	5,000		26.25
	43,700		26.27
	5,000		26.28
	5,400		26.30
	500		26.31
	22,700		26.32
	50,400		26.33
	174,200		26.34
	242,600		26.35
	168,100		26.36
	28,300		26.37
	117,500		26.38
	28,500		26.39
	534,500		26.40
	18,200		26.41
	307,200		26.50
	246,300		26.55
	37,100		26.56
	7,800		26.57
	5,000		26.70
	8,000		26.71
	31,000		26.72
	1,400		26.73
	12,900		26.74
	172,600		26.75
	7,000		26.79
	177,800		26.80
4/28/05	5,000		26.39
	1,800		26.42
	37,200		26.43
	41,700		26.44
	199,400		26.45
	39,900		26.46
	29,700		26.47
	50,000		26.48
	31,600		26.49
	503,000		26.50
	20,000		26.52

Tracinda Corporation


Date	No. of Shares	Price per Share
	80,000	$	26.53
	15,500		26.54
	74,500		26.55
	11,100		26.61
	49,600		26.62
	33,700		26.64
	63,400		26.65
	200		26.66
	51,000		26.67
	14,000		26.69
	217,300		26.70
	4,400		26.71
	162,000		26.72
	167,300		26.73
	150,000		26.75
	3,600		26.77
	8,500		26.78
	23,900		26.79
4/29/05	14,800		26.55
	50,000		26.58
	25,200		26.60
	7,900		26.61
	900		26.62
	64,400		26.63
	63,600		26.64
	55,500		26.65
	32,700		26.66
	6,000		26.68
	509,000		26.70
	25,000		26.75
	315,000		26.80
	14,600		26.83
5/2/05	25,000		26.76
	149,500		26.85
	11,000		26.86
	12,000		26.88
	140,400		26.90
	9,700		26.94
	11,800		26.96
	18,500		26.97
	12,400		26.98
	15,300		26.99
	259,800		27.00
	78,000		27.13
	56,600		27.16
5/3/05	41,000		27.48
	3,800		27.49
	220,600		27.50
6/13/05	18,488,831		31.00
* 6/14/05	259,013		31.00
* 6/15/05	13,308		31.00

*	On June 14 and June 15, 2005 Tracinda purchased 272,321 shares which were tendered in the tender offer pursuant to delivery guarantees. Such shares were delivered after June 13, 2005.

250 Rodeo, Inc.


Date	No. of Shares	Price per Share
4/19/05	2,600	$	24.85
	56,400		24.89
	41,000		25.04
	10,000		25.05
	6,200		25.12
	1,700		25.14
	4,000		25.15
	46,200		25.16
	3,800		25.17
	11,200		25.18
	84,300		25.20
	12,600		25.21
	8,300		25.22
	3,400		25.31
	8,900		25.35
	5,100		25.39
	59,400		25.40
	28,900		25.41
	2,100		25.42
	10,300		25.45
	1,200		25.46
	3,900		25.47
	32,200		25.48
	21,400		25.49
	133,200		25.50
	9,400		25.51
	2,500		25.52
	28,000		25.53
	55,800		25.54
	4,200		25.57
	9,000		25.60
	200		25.61
	74,800		25.64
	47,800		25.65
	32,200		25.67
	25,700		25.68
	49,000		25.70
	23,100		25.72
	100		25.77
	21,400		25.83
	19,400		25.84
	70,400		25.85
	25,900		25.86
	57,400		25.87
	21,100		25.88
	6,800		25.89
	98,500		25.90
	17,000		25.91

250 Rodeo, Inc.


Date	No. of Shares	Price per Share
	98,300	$	25.92
	50,500		25.93
	34,400		25.94
	5,000		25.95
	21,500		25.96
	53,500		25.97
	20,500		25.98
	81,000		25.99
	433,100		26.00
4/20/05	10,000		25.35
	4,900		25.40
	10,900		25.45
	2,900		25.46
	85,500		25.50
	2,800		25.52
	11,100		25.53
	3,500		25.54
	22,600		25.56
	2,300		25.59
	10,500		25.60
	3,900		25.66
	5,000		25.67
	19,300		25.68
	40,400		25.69
	287,800		25.70
	126,600		25.71
	49,000		25.72
	4,100		25.73
	54,800		25.74
	138,800		25.75
	100		25.76
	27,400		25.77
	46,500		25.78
	6,400		25.79
	462,900		25.80
	45,100		25.81
	40,200		25.82
	2,300		25.83
	17,900		25.84
	82,100		25.85
	10,400		25.86
	21,700		25.87
	28,300		25.88
	200		25.89
	135,000		25.90
	32,200		25.91
	44,300		25.92
	23,000		25.93

250 Rodeo, Inc.


Date	No. of Shares	Price per Share
	23,700	$	25.94
	114,000		25.95
	19,100		25.96
	34,900		25.97
	46,400		25.98
	5,400		25.99
	490,700		26.00
4/21/05	25,900		25.60
	31,000		25.61
	1,300		25.62
	1,400		25.63
	25,000		25.64
	5,900		25.65
	40,000		25.66
	47,900		25.67
	60,700		25.68
	63,400		25.69
	74,600		25.70
	24,900		25.71
	15,200		25.72
	4,800		25.73
	14,300		25.74
	343,800		25.75
	5,300		25.77
	17,300		25.79
	3,600		25.80
	14,700		25.81
	300		25.82
	14,600		25.83
	2,500		25.84
	19,800		25.85
	1,100		25.88
	34,200		25.90
	13,100		25.91
	256,300		25.95
	121,000		25.97
	541,000		25.98
	108,300		26.00
	355,000		26.06
	279,100		26.25
4/22/05	12		25.86
	875		25.88
	1,773		25.90
	446		25.95
	709		25.96
	319		26.00
	13,002		26.20
	2,955		26.21

250 Rodeo, Inc.


Date	No. of Shares	Price per Share
	6,500	$	26.27
	11,820		26.30
	3,546		26.31
	5,910		26.36
	11,205		26.45
	4,728		26.47
	9,220		26.51
	33,332		26.60
	11,229		26.61
	28,723		26.63
	1,655		26.64
	60,412		26.65
	20,921		26.66
	30,957		26.67
	16,548		26.68
	16,903		26.77

EX-1 2 dex1.htm AGREEMENT FOR SERVICES BETWEEN JEROME YORK AND TRACINDA CORPORATION Agreement for Services between Jerome York and Tracinda Corporation

Exhibit 1

AGREEMENT FOR SERVICES

Agreement made as of April 19, 2005 (this “Agreement”), by and between Tracinda Corporation, a Nevada corporation (“Tracinda”), and Jerome B. York (“Contractor”).

WHEREAS, Tracinda and Contractor desire to set forth the terms and conditions pursuant to which Contractor will render certain consulting services to Tracinda;

NOW, THEREFORE, the parties hereto agree as follows:

1. Services

(a) Contractor hereby agrees to render such specific consulting and advisory services to Tracinda in connection with Tracinda’s investments as may be reasonably requested by Tracinda.

(b) Contractor may reject any performance of services, which are not under Contractor’s control, and Tracinda may reject any services offered by Contractor, which, in the sole discretion of Tracinda, are not needed or requested by Tracinda.

(c) Contractor shall retain the right to perform services for others provided that prior written notification of the intended performance of such services is given to Tracinda, and, provided further, that such services are not, in Tracinda’s sole discretion, in conflict (both as to time necessary for performance and the nature and for whom the services are to be performed) with Contractor’s services to Tracinda. It is acknowledged that Contractor is currently a director of Apple Computer, Inc., Exide Technologies, My Publisher and, Tyco International Ltd.

(d) Services are to be performed at Contractor’s place of business or at any such other place that Contractor deems necessary and/or appropriate and at such times and in such manner as Contractor determines in his sole discretion.

2. Compensation

(a) Contractor will receive, effective April 19, 2005, an annual retainer fee of $600,000.00, which will be paid in equal monthly installments, in gross, for services performed.

(b) In addition to the consideration payable hereunder, Tracinda and Contractor have entered into a Value Sharing Agreement (the “Value Sharing Agreement”) of even date herewith.

3. Expenses

(a) Tracinda shall reimburse Contractor for all reasonable out of pocket expenses (which shall include first class commercial air fare) incurred by Contractor at the request of Tracinda in connection with the services to be provided by Contractor hereunder.

(b) In lieu of first class commercial air fare, Contractor may charge Tracinda for the use of Contractor’s private jet aircraft, when used in the performance of Contractor’s consulting and advisory services for Tracinda, at the rate of $4,200.00 per hour up to a maximum of $400,000.00 per year.

(c) Expenses shall be reimbursed by Tracinda to Contractor within thirty (30) days after invoicing which shall include reasonable documentation for all expenses.

4. Term

The term of this Agreement will commence on the date first written above and shall expire on the fourth anniversary thereof, unless terminated sooner upon the written notice of either party.

5. Governing Law

This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada.

6. Notices

Any notice hereunder shall be in writing, shall be delivered by confirmed facsimile transmission or by overnight courier (with proof of delivery), and shall be effective upon actual receipt by the addressee, or, if not actually received before, shall be deemed to have been actually received on the third day following such transmission or such delivery. Notices shall be delivered as follows:

To Tracinda:

Tracinda Corporation

Attn.: Anthony Mandekic, Secretary/Treasurer

Adderess and facsimile as previously supplied

To Contractor:

Jerome B. York

Harwinton Capital Corporation

Address and facsimile as previously supplied

9. Sole Beneficiary

Contractor represents and warrants that no other person or entity has any right to share or participate in any of the compensation to be paid (or otherwise) to Contractor hereunder or pursuant to the terms of the Value Sharing Agreement.

10. Independent Contractor

It is the express intention of the parties to this Agreement that Contractor is an independent contractor and not an employee, agent, joint venturer, or partner of Tracinda. Nothing is this Agreement shall be interpreted or construed as creating or establishing the relationship of employer or agent of Contractor. Both parties acknowledge that Contractor is not an employee for state or federal tax purposes and that Contractor shall be liable for all applicable taxes.

11. Indemnification

Tracinda will indemnify Contractor for any claims or liabilities, and losses, expenses and adverse consequences arising from such claims or liabilities, which Contractor may incur or suffer arising out of, resulting from or relating to Contractor’s association with Tracinda pursuant to this Agreement; provided that such claims, liabilities, losses, expenses and adverse consequences are not directly or indirectly caused by the action or conduct of Contractor not specifically requested by Tracinda; and provided further that Contractor will tender the defense of any such claim or liability to Tracinda, unless Tracinda denies its responsibility hereunder to indemnify Contractor with respect to such claim or liability, it being understood that Tracinda will have no authority to settle any such claim or liability on Contractor’s behalf without Contractor’s prior written consent if such settlement involves any obligation or waiver of rights by Contractor.

12. Headings

The paragraph and other headings in this Agreement are inserted solely as a matter of convenience and for reference and are not a part of this Agreement.

13. Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument

14. Entire Agreement/Written Modification

The terms and provisions of this Agreement and the Value Sharing Agreement constitute the entire agreement between the parties and shall supercede all previous

communications, representations or agreement, either verbal or written, between the parties hereto with respect to this subject matter. This Agreement may not be enlarged, modified or altered except in writing signed by the parties.

15. Expenses

Tracinda and Contractor shall pay their respective fees and expenses in connection with the negotiation, execution and performance of this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.


TRACINDA CORPORATION

By:
Name:		Anthony L. Mandekic
Title:		Secretary/Treasurer

Jerome B. York

EX-2 3 dex2.htm VALUE SHARING AGREEMENT BETWEEN JEROME YORK AND TRACINDA CORPORATION Value Sharing Agreement between Jerome York and Tracinda Corporation

Exhibit 2

VALUE SHARING AGREEMENT

Agreement made as of April 19, 2005 (this “Agreement”) by and between Tracinda Corporation, a Nevada corporation (“Tracinda”), and Jerome B. York (“Participant”).

WHEREAS, in consideration of the services to be provided by Participant to Tracinda as contemplated by the Agreement For Services, of even date herewith, between Tracinda and Participant (the “Services Agreement”), and in addition to the consideration payable thereunder, Tracinda and Participant desire to enter into an agreement pursuant to which Participant will share a portion of the enhancement in the value of certain investments of Tracinda, as more fully set forth herein and subject to the terms and conditions hereof:

NOW, THEREFORE, the parties hereto agree as follows:

1. Participation.

(a) On the terms and subject to the conditions hereof, Participant shall be entitled to receive the Applicable Percent (as defined below) of the Incremental Value (as defined below) with respect to any shares of common stock, $1²/3 par value (the “Common Stock”), of General Motors Corporation (the “Company”) acquired by Tracinda or any of its subsidiaries on or subsequent to the date first above written (the “Shares”), and, (1) if the Shares (or any portion thereof) are exchanged for any property other than cash, or (2) if there is a spin off of securities representing assets of the Company (“Other Property”), the Applicable Percent of the Incremental Value with respect to such Other Property.

(b) For purposes of this Agreement, “Incremental Value” means:

(i) (x) The excess, if any, of (A) the average of the Fair Market Value (as defined below) of a Share (or of other Property received per Share) on each of the 20 trading days immediately preceding the fourth anniversary of the date of this Agreement over the average per share purchase price (including commissions) of the Shares (the “Base Price”), multiplied by (y) the number of shares acquired by Tracinda minus the number of Sold Shares (as defined below); and

(ii) With respect to any of such Shares purchased by Tracinda (or Other Property with respect thereto) that are sold by Tracinda for cash and such sale is consummated while this Agreement remains in force and prior to the fourth anniversary of the date of this Agreement, the excess, if any, of (x) the actual net cash proceeds received by Tracinda upon the sale of such Shares or Other Property over (y) (A) the Base Price, multiplied by (B) the number of Shares covered by such sale (or, in the case of Other Property, the number of Shares for which the Other Property covered by such sale was exchanged)(the “Sold Shares”).

(c) For purposes of this Agreement, “Applicable Percent” means four percent (4%) of the Incremental Value of a Share (or Other Property received per Share).

(d) In the event of any merger, consolidation, reorganization, recapitalization, reclassification, stock split, reverse stock split, extraordinary distribution, or similar transaction involving the Shares, the number of Shares and/or the Base Price shall be appropriately adjusted.

(e) Incremental Value shall be reduced or offset by the amount, if any, by which the actual net cash proceeds received by Tracinda for any sale of Shares (or Other Property with respect thereto) is less than the Base Price multiplied by the number of Shares covered by such sale (or, in the case of a sale of Other Property, the number of Shares for which the Other Property covered by such sale was exchanged) and, such Shares shall be considered Sold Shares for purposes of paragraph 1(b)(i).

(f) Any payment due to Participant pursuant to this paragraph shall be paid to Participant in the case of paragraph 1(b) (i), within thirty (30) days after the fourth anniversary of the date hereof, and, in the case of paragraph 1(b)(ii), within thirty (30) days after receipt by Tracinda of the net proceeds of such sale.

(g) “Fair Market Value” shall mean, for any date, the mean between the high and low sales prices on such date, or if no sales price is available for the Common Stock or Other Property (i) as reported by the principal national securities exchange on which the Common Stock or Other Property is then traded which reports the highest daily average trading volume during the valuation period in question, or (ii) if not traded on any such national securities exchange, as quoted on an automated quotation system sponsored by the National Association of Securities Dealers. If the Common Stock or Other Property is not regularly traded on a national securities exchange or any system sponsored by the National Association of Securities Dealers, the Fair Market Value of the Common Stock and/or Other Property shall be determined by a nationally recognized, independent investment banking firm selected by Tracinda in its sole discretion.

(h) During the term of this Agreement, Participant agrees that, without Tracinda’s prior written consent, neither Participant, nor his affiliates and associates (as such terms are defined in Rule 12b-2 under the Securities Exchange of 1934) other than Tracinda and its affiliates, will knowingly engage in transactions in securities of the Company (Participant’s rights under this Agreement being deemed not to be securities for purposes of this provision).

(i) Tracinda will indemnify Participant for any claims or liabilities, and losses, expenses and adverse consequences arising from such claims or liabilities, which Participant may incur or suffer as a result of direct or indirect transactions by Tracinda in securities of third parties; provided that such claims, liabilities, losses, expenses and

adverse consequences are not knowlingly caused by transactions of Participant, directly or indirectly, in such securities (excluding transactions in accordance with this Agreement); and provided further that Participant will tender the defense of any such claim or liability to Tracinda, unless Tracinda denies its responsibility hereunder to indemnify Participant with respect to such claim or liability, it being understood that Tracinda will have no authority to settle any such claim or liability on Participant’s behalf without Participant’s prior written consent if such settlement involves any obligation or waiver of rights by Participant.

2. Control Over Shares

Participant expressly acknowledges that Traicnda retains the right, in its sole discretion, to make all investment and other decisions with respect to the Shares, its investment in the Company, or otherwise with respect to the Company, including without limitation the sole right to determine whether and/or when to sell or otherwise dispose of any Shares and the consideration to be received in any such sale or other disposition, whether to enter into, or to approve or disapprove (including voting the Shares for or against) any merger, consolidation, reorganization, recapitalization, reclassification, stock split, reverse stock split, spin-off or other extraordinary transaction involving Tracinda and/or the Company. Participant further expressly acknowledges that Tracinda has no obligation whatsoever to attempt to maximize Incremental Value as defined in this Agreement, and may make all such investment and other decisions without regard for the effect of such decisions under this Agreement. Without limiting the foregoing, Tracinda may pledge, or otherwise create one or more liens or encumbrances on, all or any portion of the Shares, with respect to borrowings or otherwise.

3. Term

The term of this Agreement will commence on the date first written above and continue through the last date on which any payment is due hereunder, unless terminated sooner in accordance with paragraph 4. Following the determination of the Incremental Value under paragraph 1(b)(i) and the making of any required payment with respect thereto as well as all amounts which are payable under paragraph 1(b)(ii), Tracinda shall have no further obligation to Participant with respect to the Shares or any sale or other disposition thereof.

4. Termination

(a) This Agreement may be terminated by mutual written agreement of Tracinda and Participant.

(b) This Agreement may be terminated by Tracinda upon Tracinda’s termination of the Services Agreement.

(c) Upon termination of this Agreement pursuant to paragraphs 4(a) or (b), Tracinda shall have no further obligation to Participant with respect to the Shares (or

Other property with respect thereto) or any sale or other disposition of Shares (or Other Property with respect thereto), except to pay all amounts payable pursuant to paragraphs 1(a) and (b) of this Agreement as to any Shares acquired by Tracinda as of the date of notice of Termination.

(d) Upon Participant’s termination of the Services Agreement, and notwithstanding paragraph (c) above, Tracinda shall have no obligation to Participant pursuant to paragraphs 1(a) and (b) of this Agreement except pursuant to paragraph 1(b)(ii) relating to any Sold Shares as of the date of such termination.

5. No Lien on Shares

The rights of Participant hereunder constitute an unsecured general obligation of Tracinda. Participant shall not have, and this Agreement shall not be deemed to create, any security interest, lien or other encumbrance of any kind whatsoever, or any legal or equitable interest of any kind whatsoever, in or with respect to the Shares.

6. Governing Law

This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada.

7. Notices

To Tracinda:

Tracinda Corporation

Attn.: Anthony Mandekic, Secretary/Treasurer

Address and facsimile as previously supplied

To Participant:

Jerome B. York

Harwinton Capital Corporation

Address and facsimile as previously supplied

8. Sole Beneficiary

Participant represents and warrants that no other person or entity has any right to share or participate in any of the Incremental Value (or otherwise) to be paid to Particiapnt hereunder or pursuant to the terms of the Services Agreement.

9. Headings

The paragraph and other headings in this Agreement are inserted solely as a matter of convenience and for reference and are not a part of this Agreement.

10. Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument

11. Entire Agreement/Written Modification

The terms and provisions of this Agreement and the Services Agreement constitute the entire agreement between the parties and shall supercede all previous communications, representations or agreement, either verbal or written, between the parties hereto with respect to this subject matter. This Agreement may not be enlarged, modified or altered except in writing signed by the parties.

12. Expenses

Tracinda and Participant shall pay their respective fees and expenses in connection with the negotiation, execution and performance of this Agreement and the transactions contemplated hereby.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.


TRACINDA CORPORATION

By:
Name:		Anthony L. Mandekic
Title:		Secretary/Treasurer

Jerome B. York

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