Securities Exchange Act of 1934
Sections 13(a) and 15(d)
July 9, 2009
Response of the Office of Chief Counsel
Division of Corporation Finance
Motors Liquidation Company, formerly known as General Motors Corporation
Incoming letter dated July 9, 2009
Based on the facts presented, the Division will not object if Old GM does not file future periodic reports under Sections 13(a) and 15(d) of the Exchange Act, until such time as the liquidation of Old GM is completed, provided that Old GM and New GM file the reports outlined below and as described in your letter. Capitalized terms in this letter have the same meaning as in your letter.
During the pendency of its liquidation proceedings under Chapter 11 of the Bankruptcy Code, Old GM will file, under cover of Form 8-K:
- All financial reports that are required to be filed with the Bankruptcy Court within four business days after such reports are required to be filed with the Bankruptcy Court; and
- Disclosure regarding material events relating to the liquidation, the likelihood of any liquidation payments being made to security holders, and the amounts of any liquidation payments and expenses.
This relief applies only to filing Forms 10-K and 10-Q. Old GM must continue to satisfy all other provisions of the Exchange Act, including filing the current reports required by Form 8-K (with the exception of the financial information required by Item 9.01 of each Form 8-K that is filed upon a purchase or sale of assets by Old GM).
When the liquidation of Old GM is completed, Old GM will:
- File a final report on Form 8-K; and
- File a Form 15 to suspend Old GM's reporting obligations under the Exchange Act.
Effective upon the closing of the Section 363 sale, New GM will file, under cover of Form 8-K:
- Within 30 days after the closing of the Section 363 sale, textual, non-financial information about New GM that would be required to be included in a Form 10 filed with the Commission;
- Within the time frames set forth in the Instructions to Form 8-K, all Forms 8-K that would be required of a company subject to Section 13(a) of the Exchange Act (with the exception of the financial information required by Item 9.01 of each Form 8-K that is filed upon a purchase or sale of assets by New GM, which financial information will be reflected in the fully compliant Form 10 to be filed by New GM, as discussed below);
- By November 15, 2009, financial and related information of New GM as of September 30, 2009 and for the period from the closing of the Section 363 sale to September 30, 2009 and for the three and nine months ended September 30, 2009; and
- Monthly information about car and truck deliveries on a monthly basis.
By March 31, 2010, New GM will file with the Commission a fully compliant Form 10 to register its common stock under Section 12 of the Exchange Act, as well as a fully compliant Form 10-Q and Form 10-K for the periods ending September 30, 2009 and December 31, 2009, respectively.
In reaching this position, we particularly note your representations about the following:
- Even though trading in Old GM common stock is more than minimal, Old GM's management has publicly disclosed its strong belief that there will be "no value for the common stockholders in the bankruptcy liquidation process, even under the most optimistic of scenarios." The Bankruptcy Court, in its decision approving the Section 363 sale, noted that "the Court is sensitive to [GM stockholders'] concerns, but cannot help them. GM is hopelessly insolvent, and there is nothing for stockholders now. And if GM liquidates, there will not only be nothing for stockholders; there will be nothing for unsecured creditors." Hence, information about Old GM is not relevant to the common stockholders.
- Based on your diligence, there is minimal trading in the Registered Debt.
- The only holders of Old GM's Exchange Act-registered securities who will receive value in the bankruptcy proceeding will be holders of the Registered Debt, and the value they will receive will be almost exclusively, if not exclusively, driven by Old GM's investment in the common equity of New GM. Information about New GM, coupled with modified reporting by Old GM, would provide all of the relevant information about Old GM regarding Old GM's prospects, the bankruptcy proceeding and Old GM's investment in New GM that is necessary to assess all of the drivers of the value of the Registered Debt.
- Old GM's future periodic reports would not reflect a continuity of operations.
- The financial information that New GM will report as of September 30, 2009 and for the period from the closing of the Section 363 sale to September 30, 2009 and for the three and nine months ended September 30, 2009 will be the same information that New GM management will have to evaluate and consider operating results and liquidity issues when assessing and measuring the operational and financial performance of New GM.
This position is based on the representations made to the Division in your letter. Any different facts or conditions might require the Division to reach a different conclusion. Further, this response expresses the Division's position on enforcement action only and does not express any legal conclusions on the questions presented.
Thomas J. Kim
Chief Counsel and Associate Director
The Incoming Letter is in Acrobat format.