SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported) October 7, 2002
---------------
GENERAL MOTORS CORPORATION
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
STATE OF DELAWARE 1-143 38-0572515
---------------------------- ----------------------- -------------------
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
300 Renaissance Center, Detroit, Michigan 48265-3000
-------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (313)-556-5000
--------------
ITEM 9. Forward Looking Information Relating to Hughes
The following letter was filed with the FCC on October 7, 2002 and will be
made available on Hughes' website:
October 7, 2002
Michael K. Powell
Chairman
Federal Communications Commission
The Portals
445 12th Street, S.W.
Washington, DC 20554
W. Kenneth Ferree
Bureau Chief
Media Bureau
Federal Communications Commission
The Portals
445 12th Street, S.W.
Washington, DC 20554
Re: Ex Parte Notice - Consolidated Application of EchoStar
Communications Corporation, General Motors Corporation and
Hughes Electronics Corporation for Authority to Transfer Control,
CS Docket No. 01-348
Dear Chairman Powell and Mr. Ferree:
As you know, in this proceeding the Commission has before it the proposed
merger of EchoStar Communications Corporation ("EchoStar") and Hughes
Electronics Corporation ("Hughes" and collectively, the "Applicants"). As the
Commission approaches the completion of its consideration of the merits and
processing of the applications that would effectuate the merger, the Applicants
respectfully request the Commission expeditiously to consider two additional
matters of process - take into account the unfolding Department of Justice
("DOJ") antitrust review process and hold an en banc hearing or public forum,
consistent with its practice for complex and important mergers such as this.
First, the Applicants request that, in ruling on the merger, the
Commission consider any actions taken on the merger by the DOJ, which is
concurrently reviewing the transaction from an antitrust perspective. This past
Thursday and Friday, DOJ took the deposition of EchoStar's Chairman and Chief
Executive Officer, Charles Ergen. DOJ has requested additional time of
deposition for Mr. Ergen and EchoStar has agreed to that request even though a
date has not yet been scheduled. The Applicants have agreed with DOJ on a
schedule for discussing, among other things, the possibility of "major
revisions" to the transaction that will go beyond remedies heretofore presented
by the Applicants such as national pricing. This schedule includes a meeting
with the Assistant Attorney General and his senior staff set for October 28,
2002. As part of that schedule, the parties are in the process of preparing
structural remedy proposals that will be submitted to DOJ prior to the October
28, 2002 meeting to address areas of concern expressed by DOJ.
The Commission has found in many merger proceedings that its broader
public interest standard is best served by considering the antitrust agency's
formal determinations regarding the proposed merger and proposed remedies before
acting. Indeed, this has been for many years the Commission's normal practice
with high profile mergers of this type, "since the factual basis for the FCC's
review of whether a license transfer is in the public interest may be affected
by the antitrust agency's determinations."(1) Moreover, the Commission's
timeline for considering complex mergers of this kind contemplates precisely
what the Applicants are requesting here - the receipt by the Commission of
information about "major revisions" to the transaction "as a result of action by
other agencies" prior to Commission action. (2) Therefore, the Applicants
request that, consistent with past practice, the Commission await completion of
DOJ's fact-gathering and negotiations with the parties, and similar discussions
between the parties and the Commission, prior to acting in this proceeding.
Second, in order to aid in the Commission's final deliberations, the
Applicants request a final, expedited en banc hearing or public forum on the
merits of the merger, given the current state of the record in this proceeding.
Such a process is consistent with the Commission's timeline for consideration of
such mergers. (3) An en banc hearing is also consistent with past Commission
practice in other major merger cases involving complex or difficult issues
(e.g., AOL/Time Warner, SBC/Ameritech, Bell Atlantic/GTE, AT&T/TCI,
WorldCom/Sprint, AT&T/Media One). (4) As the Commission has observed:
A public forum has proven a useful process in complex cases to allow a
fuller public discussion of the issues. It provides an opportunity for
give and take among the Commission, the applicants, and other interested
parties that in some cases cannot be efficiently duplicated in the written
pleadings or ex parte processes. (5)
The above observation is particularly apt in this case where discussions
with the DOJ are ongoing. Moreover, to the extent that the Commission has
concerns with the merits of the merger, the Applicants feel that a public forum
process, featuring further direct testimony by and interaction with Applicants'
economic experts, Dr. Andrew Joskow and Professor Robert Willig, could be a very
valuable decisional tool for the Commission to employ at this penultimate stage
of the process. To the extent that such action might necessitate a brief
stoppage of the Commission's merger processing "clock," the Applicants would
support such a suspension.
Thank you for your consideration of this request. We will continue to work
with your staff on such matters and trust that an appropriate schedule can be
developed.
In accordance with Section 1.1206 of the Commission's Rules, 47 C.F.R.
ss.1.1206, one copy of this ex parte notice is being filed electronically with
the Commission. If you have questions concerning this meeting or this notice,
please contact the undersigned.
Respectfully submitted,
/s/ Gary M. Epstein /s/ Pantelis Michalopoulos
------------------- --------------------------
Gary M. Epstein Pantelis Michalopoulos
James H. Barker Philip L. Malet
Latham & Watkins Marc A. Paul
555 11th Street, N.W. Steptoe & Johnson LLP
Suite 1000 1330 Connecticut Avenue, N.W.
Washington, D.C. 20004 Washington, D.C. 20036
(202) 637-2200 (202) 429-6494
Counsel for Hughes Electronics Counsel for EchoStar Communications
Corporation and General Motors Corporation
Corporation
cc: Marlene H. Dortch
Marcia Glauberman
Linda Senecal
Qualex International
(1) See Letter from Christopher J. Wright, General Counsel, FCC to Arthur H.
Harding, counsel for Time Warner, et al., CS Docket No. 00-30 (dated
Oct. 11, 2000).
(2) See FCC web site at http://www.fcc.gov/transaction/timeline.html ("Proposed
Timeline for Consideration of Applications for Transfers or Assignments of
Licenses or Requests for Authorizations Relating to Complex Mergers").
(3) That timeline contemplates an en banc hearing at Day 130, after the
Applicants have advised the Commission at Day 110 of "action by other
agencies." See FCC web site at
http://www.fcc.gov/transaction/timeline.html. As explained above, the DOJ
review process has not matured to the stage where the Applicants could so
advise the Commission at Day 110.
(4) See Letter from Christopher J. Wright, General Counsel, FCC to Arthur H.
Harding, counsel for Time Warner, et al., CS Docket No. 00-30 (dated
Oct. 11, 2000).
(5) See FCC web site at http://www.fcc.gov/transaction/issuesmemo.html ("Issues
Memorandum for March 1, 2000 Transactions Team Public Forum on Streamlining
FCC Review of Applications Relating to Mergers.")
In connection with the proposed transactions, General Motors Corporation ("GM"),
HEC Holdings, Inc. ("Hughes Holdings") and EchoStar Communications Corporation
("EchoStar") have filed amended preliminary materials with the Securities and
Exchange Commission ("SEC"), including a Registration Statement of Hughes
Holdings on Form S-4 that contains a consent solicitation statement/information
statement/prospectus. These materials are not yet final and will be further
amended. Holders of GM $1-2/3 and GM Class H common stock are urged to read the
definitive versions of these materials, as well as any other relevant documents
filed or that will be filed with the SEC, as they become available, because
these documents contain or will contain important information. The preliminary
materials, the definitive versions of these materials and other relevant
materials (when they become available), and any other documents filed by GM,
Hughes Electronics Corporation ("Hughes"), Hughes Holdings or EchoStar with the
SEC may be obtained for free at the SEC's website, www.sec.gov, and GM
stockholders will receive information at an appropriate time on how to obtain
transaction-related documents for free from GM.
GM and its directors and executive officers, Hughes and certain of its officers,
and EchoStar and certain of its executive officers may be deemed to be
participants in GM's solicitation of consents from the holders of GM $1-2/3
common stock and GM Class H common stock in connection with the proposed
transactions. Information regarding the participants and their interests in the
solicitation was filed pursuant to Rule 425 with the SEC by EchoStar on November
1, 2001 and by each of GM and Hughes on November 16, 2001. Investors may obtain
additional information regarding the interests of the participants by reading
the amended preliminary consent solicitation statement/information
statement/prospectus filed with the SEC and the definitive consent solicitation
statement/information statement/prospectus when it becomes available.
This communication shall not constitute an offer to sell or the solicitation of
an offer to buy, nor shall there be any sale of securities in any jurisdiction
in which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
jurisdiction. No offering of securities shall be made except by means of a
prospectus meeting the requirements of Section 10 of the Securities Act of 1933,
as amended.
Materials included in this document contain "forward-looking statements" within
the meaning of the Private Securities Litigation Reform Act of 1995. Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors that could cause our actual results to be materially different
from historical results or from any future results expressed or implied by such
forward-looking statements. The factors that could cause actual results of GM,
EchoStar, Hughes, or a combined EchoStar and Hughes, to differ materially, many
of which are beyond the control of EchoStar, Hughes, Hughes Holdings or GM
include, but are not limited to, the following: (1) the businesses of EchoStar
and Hughes may not be integrated successfully or such integration may be more
difficult, time-consuming or costly than expected; (2) expected benefits and
synergies from the combination may not be realized within the expected time
frame or at all; (3) revenues following the transaction may be lower than
expected; (4) operating costs, customer loss and business disruption including,
without limitation, difficulties in maintaining relationships with employees,
customers, clients or suppliers, may be greater than expected following the
transaction; (5) generating the incremental growth in the subscriber base of the
combined company may be more costly or difficult than expected; (6) the
regulatory approvals required for the transaction may not be obtained on the
terms expected or on the anticipated schedule; (7) the effects of legislative
and regulatory changes; (8) an inability to obtain certain retransmission
consents; (9) an inability to retain necessary authorizations from the FCC; (10)
an increase in competition from cable as a result of digital cable or otherwise,
direct broadcast satellite, other satellite system operators, and other
providers of subscription television services; (11) the introduction of new
technologies and competitors into the subscription television business; (12)
changes in labor, programming, equipment and capital costs; (13) future
acquisitions, strategic partnership and divestitures; (14) general business and
economic conditions; and (15) other risks described from time to time in
periodic reports filed by EchoStar, Hughes or GM with the Securities and
Exchange Commission. You are urged to consider statements that include the words
"may," "will," "would," "could," "should," "believes," "estimates," "projects,"
"potential," "expects," "plans," "anticipates," "intends," "continues,"
"forecast," "designed," "goal," or the negative of those words or other
comparable words to be uncertain and forward-looking. This cautionary statement
applies to all forward-looking statements included in this document.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GENERAL MOTORS CORPORATION
--------------------------
(Registrant)
Date October 7, 2002
---------------
By
/s/Peter R. Bible
--------------------------
(Peter R. Bible,
Chief Accounting Officer)