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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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THE CIT GROUP, INC.
(FORMERLY THE CIT GROUP HOLDINGS, INC.)
(Exact name of registrant as specified in its charter)
DELAWARE 13-2994534
(State of incorporation (I.R.S. employer
or organization) identification number)
1211 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Class A Common Stock The New York Stock Exchange
If this form relates to the registration of a class of
securities pursuant to Section 12(b) of the Exchange Act and is
effective pursuant to General Instruction A.(c), check the
following box. [X]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this
form relates:
333-36435
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
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The purpose of this amendment is to amend Exhibit 3.1 hereto.
Item 1. Description of the Registrant's Securities to be Registered.
The description of the securities to be registered hereby is incorporated
by reference to the description contained in the registrant's Registration
Statement on Form S-2 initially filed with the Securities and Exchange
Commission (the "Commission") on September 26, 1997 (Registration No. 333-36435)
(as amended by Amendment No. 1 thereto filed with the Commission on October 14,
1997, and by Amendment No. 2 thereto filed with the Commission on November 12,
1997, the "Registration Statement"). The description of the securities to be
registered hereby contained in any prospectus included in the Registration
Statement filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended, will be deemed to be incorporated by reference in this registration
statement upon the filing of any such prospectus with the Commission.
Item 2. Exhibits.
3.1 --Amended and Restated Certificate of Incorporation of the registrant.
3.2* --Amended and Restated By-Laws of the registrant.
4.1* --Form of certificate of Class A Common Stock.
4.2 --Form of global note pertaining to $150 million in aggregate principal
amount of the 8-3/4% Notes due April 15, 1998 (the "8-3/4% Notes")
issued by the registrant and listed on The New York Stock Exchange (the
"NYSE") (incorporated herein by reference to Exhibit 1 to the Form 8-A
filed by the registrant with the Commission on July 30, 1992).
4.3 --Indenture, dated as of October 24, 1984, between the registrant and
Morgan Guaranty Trust Company of New York, as trustee, pertaining to
the 8-3/4% Notes (incorporated herein by reference to Exhibit 4.5 to
the registrant's registration statement on Form S-3 filed with the
Commission on July 24, 1989 (Registration No. 33-30047)).
4.4 --Form of global note pertaining to $200 million in aggregate principal
amount of 5-7/8% notes due October 15, 2008 (the "5-7/8% Notes") issued
by the registrant and listed on the NYSE (incorporated herein by
reference to Exhibit 1 to the Form 8-A filed by the registrant with the
Commission on October 21, 1993).
4.5 --Indenture, dated as of July 14, 1989, between the registrant and The
First National Bank of Chicago, as trustee, pertaining to the 5-7/8%
Notes (incorporated herein by reference to Exhibit 4.8 to the
registrant's registration statement on Form S-3 filed with the
Commission on July 24, 1989 (Registration No. 33-30047)).
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* Previously filed.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
THE CIT GROUP, INC.
By: /s/ Ernest D. Stein
______________________________________
Name: Ernest D. Stein
Title: Executive Vice President,
General Counsel and Secretary
Date: November 12, 1997
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EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
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<S> <C> <C>
3.1 --Amended and Restated Certificate of Incorporation of the
registrant.
3.2* --Amended and Restated By-Laws of the registrant.
4.1* --Form of certificate of Class A Common Stock.
4.2 --Form of global note pertaining to $150 million in aggregate
principal amount of the 8-3/4% Notes due April 15, 1998 (the
"8-3/4% Notes") issued by the registrant and listed on The New
York Stock Exchange (the "NYSE") (incorporated herein by
reference to Exhibit 1 to the Form 8-A filed by the registrant
with the Commission on July 30, 1992).
4.3 --Indenture, dated as of October 24, 1984, between the
registrant and Morgan Guaranty Trust Company of New York, as
trustee, pertaining to the 8-3/4% Notes (incorporated herein by
reference to Exhibit 4.5 to the registrant's registration
statement on Form S-3 filed with the Commission on July 24,
1989 (Registration No. 33-30047)).
4.4 --Form of global note pertaining to $200 million in aggregate
principal amount of 5-7/8% notes due October 15, 2008 (the
"5-7/8% Notes") issued by the registrant and listed on the NYSE
(incorporated herein by reference to Exhibit 1 to the Form 8-A
filed by the registrant with the Commission on October 21,
1993).
4.5 --Indenture, dated as of July 14, 1989, between the registrant
and The First National Bank of Chicago, as trustee, pertaining
to the 5-7/8% Notes (incorporated herein by reference to
Exhibit 4.8 to the registrant's registration statement on Form
S-3 filed with the Commission on July 24, 1989 (Registration
No. 33-30047)).
</TABLE>
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* Previously filed.
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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE CIT GROUP, INC.
Under Sections 242 and 245 of the
Delaware General Corporation Law
The CIT Group, Inc. (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the State of Delaware, does
hereby certify that:
1. The name of the Corporation is The CIT Group, Inc.
2. The original certificate of incorporation of the Corporation was
filed by the Secretary of State of the State of Delaware on the 29th day of
August, 1979. The name under which the Corporation was originally incorporated
was "RCA Holdings Corp." The certificate of incorporation was amended by
amendments filed with the Secretary of State of the State of Delaware on January
31, 1980 and April 30, 1986, further amended and restated in its entirety by the
filing of a Restated Certificate of Incorporation on December 29, 1989 and
subsequently further amended by the filing of an amendment thereto on September
26, 1997 (as so amended, the "Restated Certificate of Incorporation").
3. This Amended and Restated Certificate of Incorporation restates,
integrates and further amends the Corporation's existing Restated Certificate of
Incorporation as follows:
(1) Article THIRD has been amended to provide that the purpose
and powers of the Corporation shall be to engage in any lawful activity under
the General Corporation Law of the State of Delaware (the "General Corporation
Law");
(2) Article FOURTH has been amended to provide for the
recapitalization of the Corporation, the authorization of Class A Common Stock
and Class B Common Stock having the terms set forth therein, and the
reclassification of all currently outstanding common stock of the Corporation as
Class B Common Stock;
(3) Article FIFTH has been added to provide procedures for
computing stockholder votes;
(4) Article SIXTH has been added to provide that the Board of
Directors shall have all powers conferred upon it by Delaware law and such
additional powers as may be conferred upon it by the By-Laws of the Corporation;
(5) Article SEVENTH has been added to provide for certain
matters governing the number of directors, the election of directors and the
filling of vacancies on the Board;
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(6) Article EIGHTH has been added to provide for the taking of
stockholder action by written consent and to set forth procedures for the
calling of special meetings of the stockholders;
(7) Article NINTH has been added to deal with potential
conflicts of interest between the Corporation and its majority stockholder;
(8) Article TENTH has been added to reflect the Corporation's
election not to be governed by Section 203 of the General Corporation Law;
(9) Article ELEVENTH has been amended to eliminate the
personal liability of directors to the fullest extent permitted by the General
Corporation Law;
(10) Article TWELFTH has been amended to provide for
indemnification of officers and directors by the Corporation to the fullest
extent permitted by the General Corporation Law; and
(11) Article THIRTEENTH has been added to provide the
procedures to be followed for further amendments to the By-Laws of the
Corporation.
4. The Restated Certificate of Incorporation of The CIT Group, Inc.,
as amended or supplemented heretofore, is further amended hereby, and is hereby
restated to read in its entirety, as hereinafter set forth:
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE CIT GROUP, INC.
FIRST: The name of the Corporation is The CIT Group, Inc.
SECOND: Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is THE
CORPORATION TRUST COMPANY.
THIRD: The purpose and powers of the Corporation are to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: (a) The total number of shares of stock that the Corporation
shall have authority to issue is 1,260,000,000, of which (i) 50,000,000 shares
shall be shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), (ii) 700,000,000 shares shall be shares of Class A Common Stock, par
value $.01 per share ("Class A Common Stock"), and (iii) 510,000,000 shares
shall be shares of Class B Common Stock, par value $.01 per share ("Class B
Common Stock", and together with the Class A Common Stock, "Common Stock").
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(b) Shares of Preferred Stock may be issued from time to
time in one or more series. Subject to any limitations set forth in this Amended
and Restated Certificate of Incorporation and any limitations prescribed by the
laws of the State of Delaware, the Board of Directors is expressly authorized,
prior to the issuance of any series of Preferred Stock, to fix by resolution or
resolutions providing for the issue of any series, the number of shares included
in such series and the designation, relative powers, preferences and
participating, optional or other special rights, and the qualifications,
limitations or restrictions of such series.
(c) The Board of Directors shall have the sole power to
issue additional shares of stock of any class or series at any time or from time
to time.
(d) The number of authorized shares of any class or
classes of Common Stock may be increased or decreased (but not below the number
of shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the votes entitled to be cast by the holders of the Class A Common
Stock and the Class B Common Stock, voting together as a single class,
irrespective of the provisions of Section 242(b)(2) of the General Corporation
Law or any corresponding provision hereinafter enacted.
(e) The relative powers, preferences and participating,
optional or other special rights, and the qualifications, limitations and
restrictions of the Class A Common Stock and Class B Common Stock of the
Corporation shall be as follows:
(1) Except as otherwise set forth below in this Article
FOURTH, the relative powers, preferences and participating, optional or
other special rights, and the qualifications, limitations or restrictions
of the Class A Common Stock and Class B Common Stock shall be identical in
all respects.
(2) Subject to the rights of the holders of any
outstanding Preferred Stock and subject to any other provisions of this
Amended and Restated Certificate of Incorporation, holders of Class A
Common Stock and Class B Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock of any corporation or,
subject to the next sentence, shares of Common Stock of the Corporation,
or any 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 and shall share equally on a per share basis in
all such dividends and other distributions. In the case of dividends or
other distributions payable in Common Stock, including distributions
pursuant to stock splits or divisions of Common Stock, only shares of
Class A Common Stock shall be paid or distributed with respect to Class A
Common Stock and only shares of Class B Common Stock shall be paid or
distributed with respect to Class B Common Stock. The number of shares of
Class A Common Stock and Class B Common Stock so distributed shall be
equal in number on a per share basis. Neither the shares of Class A Common
Stock nor the shares of Class B Common Stock may be reclassified,
subdivided or combined unless such reclassification, subdivision or
combination occurs simultaneously and in the same proportion for each
class.
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(3) At every meeting of the stockholders of the
Corporation every holder of Class A Common Stock shall be entitled to one
vote in person or by proxy for each share of Class A Common Stock standing
in his name on the transfer books of the Corporation, and every holder of
Class B Common Stock shall be entitled to five votes in person or by proxy
for each share of Class B Common Stock standing in its name on the
transfer books of the Corporation in connection with the election of
directors and all other matters submitted to a vote of stockholders,
subject to the right of The Dai-Ichi Kangyo Bank, Limited (together with
its successors, "DKB") or the Class B Transferee (as defined in Section
(e)(6)(ii) below), as the case may be, to elect to reduce from time to
time the number of votes per share to which the holders of Class B Common
Stock are entitled to any number of votes per share of Class B Common
Stock less than five (but not fewer than one) by written notice to the
Corporation, which notice shall (A) specify the reduced number of votes
per share, (B) be included with the records of the Corporation maintained
by the Secretary and (C) for so long thereafter as there shall be shares
of Class B Common Stock outstanding, be referred to or reflected in any
proxy or information statement provided to holders of the Common Stock in
connection with any matter to be voted upon by such holders; provided,
however, that with respect to any proposed conversion of the shares of
Class B Common Stock into shares of Class A Common Stock pursuant to
Section (e)(6)(ii) below, every holder of a share of Common Stock,
irrespective of class, shall have one vote in person or by proxy for each
share of Common Stock standing in his name on the transfer books of the
Corporation. Except as may be otherwise required by law or by this Article
FOURTH, the holders of Class A Common Stock and Class B Common Stock shall
vote together as a single class, subject to any voting rights that may be
granted to holders of Preferred Stock, on all matters submitted to a vote
of the stockholders of the Corporation.
(4) In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment in full of the amounts required to be paid to
the holders of any Preferred Stock, the remaining assets and funds of the
Corporation shall be distributed pro rata to the holders of Class A Common
Stock and Class B Common Stock. For purposes of this Section (e)(4), the
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares
of stock, securities or other consideration) of all or substantially all
of the assets of the Corporation or a consolidation or merger of the
Corporation with one or more other corporations (whether or not the
Corporation is the corporation surviving such consolidation or merger)
shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary.
(5) In the case of any reorganization or consolidation
or merger of the Corporation with one or more other entities, each holder
of a share of Class A Common Stock shall be entitled to receive with
respect to such share the same kind and amount of shares of stock and
other securities and property (including cash), if any, receivable upon
such reorganization, consolidation or merger by each holder of shares of
Class B Common Stock, and each holder of a share of Class B Common Stock
shall be entitled to receive with respect to such share the same kind and
amount of shares of stock
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and other securities and property (including cash), if any, receivable
upon such reorganization, consolidation or merger by a holder of shares of
Class A Common Stock, except that shares of stock or other securities
receivable upon such reorganization, consolidation or merger by a holder
of a share of Class B Common Stock may differ from the shares of stock or
other securities receivable upon such reorganization, consolidation or
merger by a holder of a share of Class A Common Stock to the extent that
the Class B Common Stock and Class A Common Stock differ as provided in
this Amended and Restated Certificate of Incorporation of the Corporation.
(6) (i) Each record holder of shares of Class B Common
Stock may convert such shares into an equal number of shares of Class A
Common Stock by surrendering the certificates for such shares, accompanied
by any required tax transfer stamps and by a written notice by such record
holder to the Corporation stating that such record holder desires to
convert such shares of Class B Common Stock into the same number of shares
of Class A Common Stock and requesting that the Corporation issue all of
such shares of Class A Common Stock to persons named therein, and setting
forth the number of shares of Class A Common Stock to be issued to each
such person and the denominations in which the certificates therefor are
to be issued. To the extent permitted by law, such voluntary conversion
shall be deemed to have been effected at the close of business on the date
of such surrender.
(ii) Each share of Class B Common Stock shall
automatically convert into one share of Class A Common Stock upon the
transfer of such share if, after such transfer, such share is not
beneficially owned by DKB or any of its subsidiaries (other than the
Corporation) or, as set forth below in this Section (e)(6)(ii), the Class
B Transferee or any subsidiaries of the Class B Transferee. Each share of
Class B Common Stock, at any time acquired by the Corporation, shall
automatically convert into one share of Class A Common Stock unless, prior
to the acquisition thereof, the Board of Directors of the Corporation
shall have adopted resolutions approving the retirement of such shares of
Class B Common Stock. For purposes of this Amended and Restated
Certificate of Incorporation, "beneficial owner", and any derivative term
thereof, shall have the meaning ascribed to such term in Rule 13d-3 of the
General Rules and Regulations of the Securities Exchange Act of 1934, as
amended. In addition, a person shall be the "beneficial owner" of any
shares of Common Stock which such person or any of its affiliates or
associates has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or understanding (but neither
such person nor any such affiliate or associate shall be deemed to be the
beneficial owner of any shares of Common Stock solely by reason of a
revocable proxy granted for a particular meeting of stockholders, pursuant
to a public solicitation of proxies for such meeting, and with respect to
which shares neither such person nor any such affiliate or associate is
otherwise deemed the beneficial owner). For purposes of this Section
(e)(6), the term "subsidiary" means as to any person or entity, all
corporations, partnerships, joint ventures, associations and other
entities in which such
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person or entity beneficially owns (directly or indirectly) 50% or more of
the outstanding voting stock, voting power, partnership interests or
similar voting interests.
Shares of Class B Common Stock representing more than a 50%
economic interest in the then outstanding shares of Common Stock taken as
a whole transferred by DKB and/or any of its subsidiaries in a single
transaction or series of related transactions to one person unrelated to
DKB or its subsidiaries (together with its successors, the "Class B
Transferee") and/or any subsidiaries of the Class B Transferee shall not
automatically convert to shares of Class A Common Stock upon the transfer
of such shares. Following any such transfer of shares of Class B Common
Stock representing more than a 50% economic interest in the outstanding
shares of Common Stock taken as a whole to the Class B Transferee, any
shares of Class B Common Stock retained by DKB and/or any of its
subsidiaries shall automatically convert into shares of Class A Common
Stock upon such transfer. For purposes of this Section (e)(6), each
reference to a "person" shall be deemed to include not only a natural
person, but also a corporation, partnership, joint venture, association,
or other legal entity of any kind; and each reference to a "natural
person" (or to a "record holder" of shares, if a natural person) shall be
deemed to include in his representative capacity a guardian, committee,
executor, administrator or other legal representative of such natural
person or record holder.
Each share of Class B Common Stock shall automatically convert
into one share of Class A Common Stock if at any time the number of shares
of Class B Common Stock then outstanding is less than 25% of the aggregate
number of shares of Common Stock then outstanding.
The Corporation will provide notice of any automatic
conversion of all outstanding shares of Class B Common Stock to holders of
record of shares of Common Stock as soon as practicable following such
conversion; provided, however, that the Corporation may satisfy such
notice requirement by providing such notice prior to such conversion. Such
notice shall be provided by mailing notice of such conversion, first
class, postage prepaid, to each holder of record of shares of Common
Stock, at such holder's address as it appears on the transfer books of the
Corporation; provided, however, that no failure to give such notice nor
any defect therein shall affect the validity of the automatic conversion
of any shares of Class B Common Stock. Each such notice shall state, as
appropriate, the following:
(A) the automatic conversion date;
(B) that all outstanding shares of Class B Common
Stock are automatically converted;
(C) the place or places where certificates for
such shares are to be surrendered for conversion; and
(D) that no dividends will be declared on the
shares of Class B Common Stock converted after such conversion date.
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Immediately upon such conversion on the automatic
conversion date, the rights of the holders of shares of Class B Common
Stock as such shall cease and such holders shall be treated for all
purposes as having become the record owners of the shares of Class A
Common Stock issuable upon such conversion; provided, however, that such
persons shall be entitled to receive when paid any dividends declared on
the Class B Common Stock as of a record date preceding the time of such
conversion and unpaid as of the time of such conversion, subject to
Section (e)(6)(vi) below.
(iii) Holders of shares of Class B Common Stock
may (A) sell or otherwise dispose of or transfer any or all of such shares
held by them, respectively, only in connection with a transfer which meets
the qualifications of Section (e)(6)(iv) below, and under no other
circumstances, or (B) convert any or all of such shares into shares of
Class A Common Stock as provided in Section (e)(6)(i) above. No one other
than those persons or entities in whose names shares of Class B Common
Stock become registered on the original stock ledger of the Corporation by
reason of their record ownership of shares of Common Stock of the
Corporation which are reclassified into shares of Class B Common Stock, or
transferees or successive transferees who receive shares of Class B Common
Stock in connection with a transfer which meets the qualifications set
forth in Section (e)(6)(iv) below, shall by virtue of the acquisition of a
certificate for shares of Class B Common Stock have the status of an owner
or holder of shares of Class B Common Stock or be recognized as such by
the Corporation or be otherwise entitled to enjoy for its own benefit the
special rights and powers of a holder of shares of Class B Common Stock.
Holders of shares of Class B Common Stock may at any and
all times transfer to any person or entity the shares of Class A Common
Stock issuable upon conversion of such shares of Class B Common Stock.
(iv) Shares of Class B Common Stock shall be
transferred on the books of the Corporation and a new certificate therefor
issued, upon presentation at the office of the Secretary of the
Corporation (or at such additional place or places as may from time to
time be designated by the Secretary or any Assistant Secretary of the
Corporation) of the certificate for such shares, in proper form for
transfer and accompanied by all requisite stock transfer tax stamps, only
if such certificate when so presented shall also be accompanied by any one
of the following:
(a) a written notice from DKB, stating that the
certificate for such shares is being presented to effect a transfer
by DKB of shares to a subsidiary or subsidiaries of DKB;
(b) a written notice from DKB, stating that the
certificate for such shares is being presented to effect a transfer
by any subsidiary of DKB of shares to DKB or another subsidiary or
subsidiaries of DKB;
(c) a written notice from DKB, stating that the
certificate for such shares is being presented to effect a transfer
by DKB or any of
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its subsidiaries of shares to the Class B Transferee or a subsidiary
or subsidiaries of the Class B Transferee as contemplated by Section
(e)(6)(ii);
(d) a written notice from the Class B Transferee
stating that the certificate for such shares is being presented to
effect a transfer by the Class B Transferee of shares to a
subsidiary or subsidiaries of the Class B Transferee; or
(e) a written notice from the Class B Transferee
stating that the certificate for such shares is being presented to
effect a transfer by any subsidiary of the Class B Transferee of
shares to the Class B Transferee or another subsidiary or
subsidiaries of the Class B Transferee.
If a record holder of shares of Class B Common Stock
shall deliver a certificate for such shares, endorsed by it for transfer
or accompanied by an instrument of transfer signed by it, to a person or
entity who receives such shares in connection with a transfer which does
not meet the qualifications set forth in this Section (e)(6)(iv), then
such person or entity or any successive transferee of a certificate for
such shares may treat such endorsement or instrument as authorizing it on
behalf of such record holder to convert such shares in the manner above
provided for the purpose of the transfer to itself of the shares of Class
A Common Stock issuable upon such conversion, and to give on behalf of
such record holder the written notice of conversion above required, and
may convert such shares of Class B Common Stock accordingly.
If such shares of Class B Common Stock shall improperly
have been registered in the name of such a person or entity (or in the
name of any successive transferee of such certificate) and a new
certificate therefor issued, such person or entity or such transferee
shall surrender such new certificate for cancellation, accompanied by the
written notice of conversion above required, in which case (1) such person
or entity or such transferee shall be deemed to have elected to treat the
endorsement on (or instrument of transfer accompanying) the certificate so
delivered by such former record holder as authorizing such person or
entity or such transferee on behalf of such former record holder so to
convert such shares and so to give such notice, (2) the shares of Class B
Common Stock registered in the name of such former record holder shall be
deemed to have been surrendered for conversion for the purpose of the
transfer to such person or entity or such transferee of the shares of
Class A Common Stock issuable upon conversion and (3) the appropriate
entries shall be made on the books of the Corporation to reflect such
action.
In the event that the Board of Directors of the
Corporation (or any committee or subcommittee of the Board of Directors,
or any officer of the Corporation, designated for this purpose by the
Board of Directors) shall determine, upon the basis of facts not disclosed
in any notice or other document accompanying the certificate for shares of
Class B Common Stock when presented for transfer, that such shares of
Class B Common Stock have been registered in violation of the provisions
of Section (e)(6), or
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shall determine that a person or entity is enjoying for his or its own
benefit the special rights and powers of shares of Class B Common Stock in
violation of such provisions, then the Corporation shall take such action
at law or in equity as is appropriate under the circumstances. An
unforeclosed pledge made to secure a bona fide obligation shall not be
deemed to violate such provisions.
(v) Every certificate for shares of Class B Common
Stock shall bear a legend on the face thereof reading as follows:
"The shares of Class B Common Stock represented by this
certificate may not be transferred to any person or entity in
connection with a transfer that does not meet the qualifications set
forth in Section (e)(6)(iv) of Article FOURTH of the Amended and
Restated Certificate of Incorporation of this Corporation and no
person or entity who receives such shares in connection with a
transfer which does not meet the qualifications prescribed by
Section (e)(6)(iv) of said Article FOURTH is entitled to own or to
be registered as the record holder of such shares of Class B Common
Stock, but the record holder of this certificate may at any time
convert such shares of Class B Common Stock into the same number of
shares of Class A Common Stock. Each holder of this certificate, by
accepting the same, accepts and agrees to all of the foregoing."
(vi) Upon any conversion of shares of Class B
Common Stock into shares of Class A Common Stock pursuant to the
provisions of this Section (e)(6), any dividend for which the record date
or payment date shall be subsequent to such conversion which may have been
declared on the shares of Class B Common Stock so converted shall be
deemed to have been declared, and shall be payable, with respect to the
shares of Class A Common Stock into or for which such shares of Class B
Common Stock shall have been so converted, and any such dividend which
shall have been declared on such shares payable in shares of Class B
Common Stock shall be deemed to have been declared, and shall be payable,
in shares of Class A Common Stock.
(vii) The Corporation shall at all times reserve
and keep available, out of its authorized but unissued Common Stock, such
number of shares of Class A Common Stock as would be issuable upon the
conversion of all shares of Class B Common Stock then outstanding.
(viii) In connection with any transfer or
conversion of any stock of the Corporation pursuant to or as permitted by
the provisions of this Section (e)(6), or in connection with the making of
any determination referred to in this Section (e)(6):
(A) The Corporation shall be under no obligation
to make any investigation of facts unless an officer, employee or agent of
the Corporation responsible for making such transfer or determination or
issuing Class A Common Stock pursuant to such conversion has substantial
reason to believe, or unless the Board of Directors (or a committee or
subcommittee of the Board of Directors designated for the
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purpose) determines that there is substantial reason to believe, that any
notice or other document is incomplete or incorrect in a material respect
or that an investigation would disclose facts upon which any determination
referred to in Section (e)(6)(iv) above should be made, in either of which
events the Corporation shall make or cause to be made such investigation
as it may deem necessary or desirable in the circumstances and have a
reasonable time to complete such investigation.
(B) Neither the Corporation nor any director,
officer, employee or agent of the Corporation shall be liable in any
manner for any action taken or omitted in good faith.
(C) The Corporation will not be required to pay
any documentary, stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of shares of Class A Common Stock on the
conversion of shares of Class B Common Stock pursuant to this Section
(e)(6), and no such issue or delivery shall be made unless and until the
person or entity requesting such issue has paid to the Corporation the
amount of any such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid.
(D) Subject to the rights of any holders of
Preferred Stock hereafter issued, all rights to vote and all voting power
(including, without limitation thereto, the right to elect directors)
shall be vested exclusively, in accordance with Section (e)(3) and
subsections (D) through (F) of this Section (e)(6)(viii), inclusive, in
the holders of Common Stock, voting together as a single class, except as
otherwise expressly required by the law of the State of Delaware, this
Amended and Restated Certificate of Incorporation or the By-Laws of the
Corporation.
(E) At any meeting of stockholders, the presence
in person or by proxy of the holders of shares entitled to cast a majority
of all the votes which could be cast at such meeting by the holders of all
of the outstanding shares of stock of the Corporation entitled to vote on
every matter that is to be voted on without regard to class at such
meeting shall constitute a quorum.
(F) At every meeting of stockholders, the holders
of shares of Class A Common Stock and the holders of shares of Class B
Common Stock shall vote together as one class, and their votes shall be
counted and totaled together; and at any meeting of stockholders duly
called and held at which a quorum (determined in accordance with the
provisions of subsection (E)) is present, (i) in all matters other than
the election of directors, a majority of the votes which could be cast at
such meeting upon a given question and (ii) in the case of the election of
directors, a plurality of the votes which could be cast at such meeting
upon such election, by such holders who are present in person or by proxy,
shall be necessary in addition to any vote or other action that may be
expressly required by the provisions of this Amended and Restated
Certificate of Incorporation or by the law of the State of Delaware, to
decide such question or election,
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and shall decide such question or election if no such additional vote or
other action is so required.
(G) Immediately upon the effectiveness of this
Amended and Restated Certificate of Incorporation, each share of common
stock of the Corporation issued and outstanding immediately prior to such
effectiveness, shall be changed into and reclassified as 157,500 shares of
Class B Common Stock.
(7) In the event that at any time or from time to time
the Corporation issues any additional equity securities of the Corporation
of any class or series or any other securities of the Corporation
convertible into such equity securities (other than pursuant to any
employee stock or stock option benefit plan or in connection with any
stock split or stock dividend), the holders of shares of Class B Common
Stock shall have the right to subscribe for and purchase additional shares
of Class B Common Stock or shares of such other securities such that such
holders of Class B Common Stock may, by purchasing such additional
securities, maintain the same percentage beneficial ownership interest
(including voting and/or economic interest) that such holders held
immediately prior to the issue of such additional securities.
FIFTH: In determining the number or the record holders of
outstanding shares of any class of stock of the Corporation for the purpose of
computing or determining the method of computing the vote or determining the
right to vote at any meeting of stockholders or of a class of stockholders, the
original stock ledger of the Corporation as at the close of business on the
record date fixed for such meeting or, if the stock transfer books of the
Corporation shall have been closed for a period immediately preceding the date
of such meeting, then as at the close of business on the date as of which such
stock transfer books were so closed, shall be conclusive for all purposes, and
in determining the number or the record holders of outstanding shares of any
class of stock of the Corporation for any other purpose, the original stock
ledger of the Corporation as at the close of business on the date as of which
the determination is being made, shall be conclusive for all purposes; all
notwithstanding any other provision of this Amended and Restated Certificate of
Incorporation.
SIXTH: The Board of Directors shall have all powers and authorities
conferred upon it by the laws of the State of Delaware and is expressly
authorized to adopt, amend or repeal the By-Laws of the Corporation. The
Corporation may in its By-Laws confer powers upon its directors in addition to
the powers and authorities expressly conferred upon them by the laws of the
State of Delaware.
SEVENTH: (a) Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specific circumstances, the
number of directors of the Corporation shall be fixed by the By-Laws of the
Corporation and may be increased or decreased from time to time in such a manner
as may be prescribed by the By-Laws. The directors of the Corporation need not
be stockholders thereof.
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(b) Unless and except to the extent that the By-Laws of
the Corporation shall so require, the election of directors of the Corporation
need not be by written ballot.
(c) Subject to any rights of holders of Preferred Stock,
any vacancy occurring in the Board of Directors caused by death, resignation,
increase in number of directors or otherwise may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director.
EIGHTH: (a) Any corporate action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any corporate action
which may be taken at any annual or special meeting of the stockholders, may,
except as otherwise required by law, be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the corporate action so taken, shall be 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 and shall be delivered to the Corporation by
delivery (either by hand or by courier service or by certified or registered
mail, return receipt requested) to its registered office in Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded; provided, however, that on and after the date on which neither DKB
and/or its subsidiaries nor the Class B Transferee and/or its subsidiaries
continue to beneficially own a majority of the total voting power of all
outstanding classes of Common Stock of the Corporation, voting together as a
single class, any corporate action required to be taken at any annual or special
meeting of the stockholders, or any corporate action which may be taken at any
annual or special meeting of the stockholders, may be taken only at a duly
called annual or special meeting of stockholders and may not be taken by written
consent of the stockholders in lieu of a meeting.
So long as stockholders are entitled to consent to corporate
action in writing without a meeting in accordance with this Section (a), every
written consent shall bear the date of signature of each stockholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within sixty (60) days of the date the
earliest dated consent is delivered to the Corporation, a written consent or
consents signed by holders of a sufficient number of votes to take action are
delivered to the Corporation in the manner prescribed in this Section (a).
(b) Unless otherwise prescribed by law or this Amended and
Restated Certificate of Incorporation, special meetings of stockholders may be
held at any time on call of the Chairman of the Board of Directors, a Vice
Chairman of the Board of Directors, the Chief Executive Officer, the President
or, at the request in writing of a majority of the Board of Directors, any other
officer.
NINTH: (a) In anticipation that DKB will remain a substantial
stockholder of the Corporation, and in anticipation that the Corporation and DKB
may engage in the same or similar activities or lines of business and have an
interest in the same areas of
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corporate opportunities, and in recognition of the benefits to be derived by the
Corporation through its continued contractual, corporate and business relations
with DKB (including possible service of directors and officers and other
employees of DKB as directors or officers or other employees of the
Corporation), the provisions of this Article NINTH are set forth to regulate and
define the conduct of certain affairs of the Corporation as they may involve DKB
and its directors and officers and other employees, and the powers, rights,
duties and liabilities of the Corporation and its directors, officers and other
employees and stockholders in connection therewith.
(b) DKB shall have no duty to refrain from engaging in
the same or similar activities or lines of business as the Corporation, and
neither DKB nor any director or officer or other employee thereof (except as
provided in subsection (c) below) shall be liable to the Corporation or its
stockholders for breach of any fiduciary duty by reason of any such activities
of DKB. In the event that DKB acquires knowledge of a potential transaction or
matter which may be a corporate opportunity for both DKB and the Corporation,
DKB shall have no duty to communicate or offer such corporate opportunity to the
Corporation and shall not be liable to the Corporation or its stockholders for
breach of any fiduciary duty as a stockholder of the Corporation by reason of
the fact that DKB pursues or acquires such corporate opportunity for itself,
directs such corporate opportunity to another person or does not communicate
information regarding such corporate opportunity to the Corporation.
(c) In the event that a director or officer or other
employee of the Corporation who is also a director or officer or other employee
of DKB acquires knowledge of a potential transaction or matter which may be a
corporate opportunity for both the Corporation and DKB, such director or officer
or other employee of the Corporation shall have fully satisfied and fulfilled
his fiduciary duty to the Corporation and its stockholders with respect to such
corporate opportunity, if such person acts in a manner consistent with the
following policy:
(1) A corporate opportunity offered to any person who is
an officer or employee of the Corporation, and who is also a director but
not an officer or employee of DKB, shall belong to the Corporation; (2) a
corporate opportunity offered to any person who is a director but not an
officer or employee of the Corporation, and who is also a director or
officer or other employee of DKB shall belong to the Corporation if such
opportunity is expressly offered to such person in writing solely in his
capacity as a director of the Corporation, and otherwise shall belong to
DKB; and (3) a corporate opportunity offered to any person who is an
officer or other employee of both the Corporation and DKB, or an officer
of one and a non-officer employee of the other, shall belong to the
Corporation if such opportunity is expressly offered to such person in
writing solely in his capacity as an officer or employee of the
Corporation, and otherwise shall belong to DKB.
(d) Any person purchasing or otherwise acquiring any
interest in shares of the capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provisions of this Article NINTH.
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(e) For purposes of this Article NINTH only:
(1) A director of the Corporation who is Chairman of the
Board of Directors of the Corporation or of a committee thereof shall not
be deemed to be an officer or employee of the Corporation by reason of
holding such position (without regard to whether such position is deemed
an officer of the Corporation under the By-Laws of the Corporation),
unless such person is a full-time employee of the Corporation; and
(2) (i) The term "Corporation" shall mean the
Corporation and all corporations, partnerships, joint ventures,
associations and other entities which are controlled by the Corporation
(directly or indirectly) through the ownership of the outstanding voting
power of such corporation, partnership, joint venture, association or
other entity or otherwise and (ii) the term "DKB" shall mean DKB and all
corporations, partnerships, joint ventures, associations and other
entities (other than the Corporation, defined in accordance with
subsection (i) of this Section (e)(2)) which are controlled by DKB
(directly or indirectly) through the ownership of the outstanding voting
power of such corporation, partnership, joint venture, association or
other entity or otherwise.
(f) Notwithstanding anything in this Amended and
Restated Certificate of Incorporation to the contrary, the foregoing provisions
of this Article NINTH shall expire on the date that DKB ceases to own
beneficially Common Stock representing at least 25% of the total voting power of
all classes of outstanding Common Stock of the Corporation and no person who is
a director or officer or other employee of the Corporation is also a director or
officer or other employee of DKB. Neither the alteration, amendment or repeal of
this Article NINTH nor the adoption of any provision of this Amended and
Restated Certificate of Incorporation inconsistent with this Article shall
eliminate or reduce the effect of this Article in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article
NINTH, would accrue or arise, prior to such alteration, amendment, repeal or
adoption.
TENTH: The Corporation elects not to be governed by Section 203 of
the General Corporation Law.
ELEVENTH: The personal liability of the directors of the Corporation
is hereby eliminated to the fullest extent permitted by the General Corporation
Law (including, without limitation, paragraph (7) of subsection (b) of Section
102 thereof), as the same may be amended and supplemented from time to time. Any
repeal or modification of this Article ELEVENTH shall not adversely affect any
right or protection of a director of the Corporation existing hereunder with
respect to any act or omission occurring prior to or at the time of such repeal
or modification.
TWELFTH: The Corporation shall, to the fullest extent permitted by
the General Corporation Law (including, without limitation, Section 145
thereof), as the same may be amended and supplemented from time to time,
indemnify any and all persons whom it shall have power to indemnify under the
General Corporation Law. The indemnification provided for herein shall not be
deemed exclusive of any other rights to which those seeking indemnification
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may be entitled, whether as a matter of law or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
THIRTEENTH: The By-Laws of the Corporation may be altered, amended
or repealed at any meeting of the Board of Directors or of the stockholders,
provided that notice of such alteration, amendment or repeal be contained in the
notice of such meeting of the Board of Directors or stockholders (subject, in
the case of meetings of stockholders, to the provisions of Article II of the
By-Laws), as the case may be.
FOURTEENTH: Unless the context of this Amended and Restated
Certificate of Incorporation otherwise requires, words of any gender shall be
deemed to include each other gender and words using the singular or plural
number shall also include the plural or singular number, respectively.
5. This Amended and Restated Certificate of Incorporation was duly
adopted by the Board of Directors of the Corporation in accordance with Section
245 of the General Corporation Law and by the written consent of the holders of
a majority of the votes entitled to be cast by the holders of the outstanding
stock of the Corporation, in accordance with Sections 242 and 228 of the General
Corporation Law.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate
to be signed by Albert R. Gamper, Jr., its President and Chief Executive
Officer, this ___ day of November, 1997.
THE CIT GROUP, INC.
By:________________________________
Name: Albert R. Gamper, Jr.
Title: President and Chief Executive
Officer
ATTEST:
______________________________
Ernest D. Stein, Secretary
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