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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-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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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, 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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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
THE CIT GROUP, INC.
By: /s/ Ernest D. Stein
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Name: Ernest D. Stein
Title: Executive Vice President,
General Counsel and Secretary
Date: October 29, 1997
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EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
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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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
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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 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 or, as set forth below in this
Section (e)(6)(ii), the Class B Transferee or any subsidiaries of the
Class B Transferee. 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 person or entity beneficially owns (directly or
indirectly) 50% or more of the outstanding voting stock, voting power,
partnership interests or similar voting interests.
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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.
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
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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
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);
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(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 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
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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 not reissue or resell any shares
of Class B Common Stock which shall have been converted into shares of Class A
Common Stock pursuant to or as permitted by the provisions of this Section
(e)(6), or any shares of Class B Common Stock which shall have been acquired by
the Corporation in any other manner. The Corporation shall, from time to time,
take such appropriate action as may be necessary to retire such shares and to
reduce the authorized amount of Class B Common Stock accordingly.
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):
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(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 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
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<PAGE> 11
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, 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 126,000 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
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<PAGE> 12
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.
(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.
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<PAGE> 13
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 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.
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<PAGE> 14
(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.
(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.
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<PAGE> 15
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 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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<PAGE> 16
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Albert R. Gamper, Jr., its President and Chief Executive Officer, and
has caused the corporate seal of the Corporation to be hereunto affixed, this
___ day of November, 1997.
THE CIT GROUP, INC.
By:________________________________
Name: Albert R. Gamper, Jr.
Title: President and Chief Executive
Officer
[SEAL]
ATTEST:
______________________________
Ernest D. Stein, Secretary
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<PAGE> 1
EXHIBIT 3.2
THE CIT GROUP, INC.
----------------------------
BY-LAWS
AS AMENDED AND RESTATED
ON NOVEMBER __, 1997
<PAGE> 2
THE CIT GROUP, INC.
BY-LAWS
-------------------
As Amended and Restated as of November __, 1997
-------------------
ARTICLE I
OFFICES
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation may also
have one or more offices at such other places, either inside or outside of the
State of Delaware, as the Board of Directors may from time to time determine or
as the business of the Corporation may require. The books and records of the
Corporation may be kept (subject to the provisions of the laws of the State of
Delaware) at any place, either inside or outside of the State of Delaware, as
from time to time may be determined by the Board of Directors.
ARTICLE II
STOCKHOLDERS
1. Meetings. An annual meeting of the stockholders of the
Corporation for the purposes of electing directors and for the transaction of
such other business as may properly be brought before the meeting shall be held
on such date as may be selected by the Board of Directors in May of each year,
or on such other date as may be fixed by the Board of Directors from time to
time, at such time and at such place within or without the State of Delaware as
may be fixed by the Board as specified in the notice of such meeting.
Unless otherwise prescribed by law or these By-Laws, special
meetings of stockholders may be held at any time only 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.
The call of a special meeting of stockholders may be canceled and
revoked at any time prior to one (1) day before the date on which said meeting
shall have been scheduled to be held by the vote of the Board of Directors, and
the Secretary shall give notice of such cancellation to each stockholder of
record entitled to vote in the manner herein prescribed for the giving of notice
of the call for such special meeting.
If the place of a meeting, either annual or special, is not fixed in
the notice of the meeting, the meeting shall be held at the principal executive
offices of the Corporation, currently
<PAGE> 3
located at 1211 Avenue of the Americas, New York, New York 10036, or at such
other place as from time to time may be the principal executive offices of the
Corporation.
2. Notices. Notice of the time and place and objects of the annual
meeting of stockholders shall be delivered personally or mailed, or sent by
courier or facsimile or other electronic transmission, at least ten (10) days
prior thereto to each stockholder of record entitled to vote in respect of the
business to be transacted thereat.
Notice of the time and place and objects of a special meeting of
stockholders shall be delivered personally or mailed, or sent by courier or
facsimile or other electronic transmission, at least ten (10) days prior thereto
to each stockholder of record entitled to vote in respect of the business to be
transacted thereat. Such further notice shall be given as may be required by
law.
Subject to the Amended and Restated Certificate of Incorporation of
the Corporation and these By-Laws, no business other than that stated in the
notice shall be transacted at any meeting.
If mailed, the notice shall be deemed given when deposited in the
United States mail, postage prepaid, and if by courier or fax or electronic
transmission the notice shall be deemed given when delivered, to each holder of
record at such stockholder's address as it appears on the records of the
Corporation, unless such stockholder shall have filed with the Secretary of the
Corporation a written request that such notices be mailed to some other address,
in which case it shall be directed to such other address. Notice of any meeting
of stockholders need not be given to any stockholder who shall attend the
meeting, other than for the express purpose of objecting at the beginning
thereof to the transaction of any business because the meeting is not lawfully
called or convened, or who shall submit, either before or after the time stated
therein, a signed waiver of notice.
Unless the Board of Directors, after an adjournment is taken, shall
fix a new record date for an adjourned meeting or unless the adjournment is for
more than thirty (30) days, notice of an adjourned meeting need not be given if
the place, date and time to which the meeting shall be adjourned are announced
at the meeting at which the adjournment is taken.
3. (a) Notice of Stockholder Nominations and Business. (1)
Nominations of persons for election to the Board of Directors and the proposal
of business to be considered by the stockholders may be made at an annual
meeting of stockholders (x) pursuant to the Corporation's notice of meeting
delivered pursuant to this Section 3, (y) by or at the direction of the Board of
Directors or (z) by any stockholder of the Corporation who is entitled to vote
at the meeting who has complied with the notice procedures set forth in Sections
3(a)(2) and 3(a)(3) of this Article II and who was a stockholder of record at
the time such notice was delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to Section 3(a)(1)(z) of this
Article II, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation and such business must be a proper subject for
stockholder action under the General Corporation Law of the State
2
<PAGE> 4
of Delaware (the "General Corporation Law"). To be timely, a stockholder's
notice must be delivered to the Secretary at the principal executive offices of
the Corporation not less than sixty (60) days nor more than ninety (90) days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced by
more than thirty (30) days or delayed by more than sixty (60) days from such
anniversary date, notice by the stockholder, to be timely, must be so delivered
not earlier than the ninetieth (90th) day prior to such annual meeting and not
later than the close of business on the later of the sixtieth (60th) day prior
to such annual meeting or the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice shall set forth (i) as to each person whom the stockholder proposes to
nominate for election or re-election as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected)
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") or otherwise; (ii) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (A) the name
and address of such stockholder, as they appear on the Corporation's books, and
of such beneficial owner and (B) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner. If the stockholder or beneficial owner intends to solicit
proxies in support of any such nomination or proposal, such stockholder's notice
shall also include a representation to that effect.
(3) Notwithstanding anything in the second sentence of Section
3(a)(2) of this Article II to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is no
public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least
seventy (70) days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 3 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the tenth (10th) day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting pursuant to Section
3(a) of this Article II. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation's notice of meeting (1) by or at
the direction of the Board of Directors or (2) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with the notice
procedures set forth in this Section 3 and who is a stockholder of record at the
time such notice is delivered to the Secretary of the
3
<PAGE> 5
Corporation. Nominations by stockholders of persons for election to the Board of
Directors may be made at such a special meeting of stockholders if the
stockholder's notice required by Section 3(a)(2) of this Article II shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the ninetieth (90th) day prior to such special meeting and not
later than the close of business on the later of the sixtieth (60th) day prior
to such special meeting or the tenth (10th) day following the day on which
public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(c) Compliance with this Section 3, Definition of "Public
Announcement". (1) Except as otherwise set forth in Article III, Section 4, only
persons who are nominated in accordance with the procedures set forth in this
Section 3 shall be eligible to serve as directors and only such business shall
be conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 3. Except as
otherwise provided by law, the Amended and Restated Certificate of Incorporation
or these By-Laws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with this Section 3 and, if any proposed
nomination or business is not in compliance with this Section 3, or if a
stockholder or beneficial owner solicits proxies in support of a nomination or
proposal without having made the representation required in Section 3(a)(2) of
this Article II, to declare that such proposal or nomination shall be
disregarded.
(2) For purposes of this Section 3, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 3, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 3. Nothing in this Section 3 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
4. Quorum. At any meeting of stockholders, the number of shares the
holders of which shall be present or represented by proxy in order to constitute
a quorum for, and the votes that shall be necessary for, the transaction of any
business shall be as expressly provided in Article FOURTH of the Amended and
Restated Certificate of Incorporation. If, however, no such quorum shall be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting, until the requisite amount of voting stock shall be present or
represented. At such adjourned meeting at which the requisite amount of voting
stock shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally called.
4
<PAGE> 6
5. Chairman and Secretary of the Meeting. Meetings of the
stockholders shall be presided over by the Chairman of the Board or the
President, or if neither the Chairman nor the President is present, any officer
designated by the Chairman of the Board or the President to act as chairman, or
if the Chairman and President are not present and neither the Chairman nor the
President has designated a chairman, by a chairman to be chosen at the meeting.
The Secretary of the Corporation, or in his absence, any person appointed by the
chairman of the meeting, shall act as secretary of the meeting and shall keep
the minutes thereof. The order of business at all meetings of the stockholders
and the procedure at the meeting, including such regulation of the manner of
voting and the conduct of discussion, shall be as determined by the chairman of
the meeting.
6. Voting Rights. At any meeting of stockholders, every stockholder
entitled to vote may vote in person or by proxy authorized by an instrument in
writing or by a transmission permitted by law filed in accordance with the
procedure established for the meeting, but no proxy shall be voted after three
years from its date, unless such proxy provides for a longer period. Every proxy
shall be executed in writing by the stockholder or by his or her authorized
representative, or otherwise as provided in the General Corporation Law.
7. Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or the allotment of any
rights, or for the purpose of any other action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
any such meeting, shall not be more than ten (10) days after the date on which
the Board, by resolution, fixes a record date for any such consent in writing,
and shall not be more than sixty (60) days prior to any other action.
8. List of Stockholders. For a period of at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting arranged in alphabetical order for each class of
stock, and showing their addresses and their record holdings as of the record
date shall be open for examination by any stockholder, for any purpose germane
to the meeting, during ordinary business hours, at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list also shall be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
9. Ratification. Any transaction questioned in any stockholders'
derivative suit, or any other suit to enforce alleged rights of the Corporation
or any of its stockholders, on the ground of lack of authority, defective or
irregular execution, adverse interest of any director, officer or stockholder,
nondisclosure, miscomputation or the application of improper principles or
practices of accounting may be approved, ratified and confirmed before or after
judgment by
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the Board of Directors or by the holders of Common Stock, voting as provided in
the Amended and Restated Certificate of Incorporation, and, if so approved,
ratified or confirmed, shall have the same force and effect as if the questioned
transaction had been originally duly authorized, and said approval, ratification
or confirmation shall be binding upon the Corporation and all of its
stockholders and shall constitute a bar to any claim or execution of any
judgment in respect of such questioned transaction.
10. Inspectors. The Board of Directors may, and to the extent
required by law shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting, decide upon the qualification of voters,
count the votes, decide the results and make a written report thereof. The Board
of Directors may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the chairman of the meeting may, and to the
extent required by law shall, appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability.
ARTICLE III
DIRECTORS
1. Number, Term of Office, Quorum. The number of directors of the
Corporation shall be fixed at ten (10), subject to any rights of holders of
Preferred Stock, unless the Board of Directors votes to increase or decrease the
number of directors. Subject to his or her earlier death, resignation or removal
as provided in Sections 2 or 3 of this Article III, each director shall hold
office until the annual meeting of the stockholders next ensuing after his or
her election and until his or her successor is elected and shall have qualified.
Directors need not be stockholders. A majority of the directors in office shall
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board.
2. Resignation. Any director may resign at any time by giving
written notice of his or her resignation to the Corporation. A resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of a resignation shall not be
necessary to make it effective.
3. Removal. Subject to any rights of holders of Preferred Stock, any
director may be removed from office, with or without cause, by the holders of a
majority of the votes entitled to be cast by the holders of all outstanding
shares of Common Stock, voting together as one class.
4. Vacancies. Subject to any rights of holders of Preferred Stock,
and unless the Corporation's Board of Directors otherwise determines, any
vacancy occurring in the Board of Directors caused by death, resignation,
increase in number of directors or otherwise may be
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filled by a majority of the directors then in office, though less than a quorum,
or by a sole remaining director. The directors so chosen shall hold office until
the next annual election and until their successors shall be duly elected and
shall qualify.
5. Meetings. Meetings of the Board of Directors shall be held at
such place within or without the State of Delaware as may from time to time be
fixed by resolution of the Board or as may be specified in the call of any
meeting. In the absence of any such designation, the meetings shall be held at
the principal executive offices of the Corporation. Regular meetings of the
Board of Directors shall be held six times each year on a bi-monthly basis and
special meetings may be held at any time upon the call of the Chairman of the
Board or the Chief Executive Officer or the President or, at the request in
writing of a majority of the directors, by the Secretary. A meeting of the Board
may be held without notice immediately after the annual meeting of stockholders
at the same place at which such meeting was held or as soon as practicable after
the annual meeting of stockholders on such date and at such time and place as
the Board determines from time to time. For all other meetings of the Board, the
Secretary or an Assistant Secretary shall give notice to each director of the
time and place of the meeting by (a) mailing such notice by United States mail
not later than the tenth (10th) day preceding the day on which such meeting is
to be held, (b) sending such notice via courier not later than the fourth (4th)
business day preceding the day on which such meeting is to be held or (c)
sending such notice by facsimile or electronic mail transmission or other form
of electronic communication or delivering such notice personally or by
telephone, in each case, not later than during the second (2nd) day immediately
preceding the day on which such meeting is to be held. Notice of any meeting
need not be given to any director who shall submit, either before or after the
time stated therein, a signed waiver of notice or who shall attend the meeting,
other than for the express purpose of objecting at the beginning thereof to the
transaction of any business because the meeting is not lawfully called or
convened. Notice of an adjourned meeting, including the place, date and time of
the new meeting, shall be given to all directors not present at the time of the
adjournment, and also to the other directors unless the place, date and time of
the new meeting are announced at the meeting at the time at which the
adjournment is taken. The Chairman of the Board shall preside at all meetings of
the Board at which he shall be present. In his or her absence, the Chief
Executive Officer shall preside at all meetings of the Board at which he or she
shall be present and in the absence of the Chief Executive Officer, the
President shall preside. In the absence of the Chairman of the Board, the Chief
Executive Officer and the President, the Board shall choose a chairman of each
meeting who shall preside thereat.
6. Dividends. To the extent permitted by law, the Board of Directors
shall have full power and discretion, subject to the provisions of the Amended
and Restated Certificate of Incorporation and the terms of any other corporate
document or instrument binding upon the Corporation, to determine what, if any,
dividends or distributions shall be declared and paid or made.
7. Audit Committee. The Board of Directors may by resolution, at any
time and from time to time, designate an Audit Committee consisting of two or
more of the directors of the Corporation who shall be "independent directors"
(as defined below). The Audit Committee shall recommend to the Board a firm of
independent public accountants, review with
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such accountants the scope of their examination, receive the reports of such
accountants and meet with representatives of such accountants for the purpose of
reviewing and considering questions relating to their examination and such
reports, review, either directly or through such accountants, the internal
accounting and auditing procedures of the Corporation, report the results of the
foregoing to the Board and act upon such other matters as may be referred to it
by the Board of Directors. The selection of independent public accountants for
each fiscal year shall be made in advance of the annual meeting of stockholders
in such fiscal year and shall be submitted for ratification or rejection at such
meeting. The Audit Committee shall keep written minutes of the business
transacted at each meeting and report such minutes to the Board of Directors at
the next regular meeting. As used in these By-Laws, "independent director" means
a person independent of management and free from any relationship which, in the
opinion of the Board, would interfere with the exercise of independent judgment
in carrying out the responsibilities of a director or who shall meet such other
requirements as may then be necessary to meet any applicable rules of any
exchange on which securities of the Corporation shall then be listed.
8. Compensation Committee. At any time and from time to time, the
Board of Directors may by resolution designate a Compensation Committee
consisting of two or more of the directors of the Corporation, who if such
committee consists of two directors shall be independent directors, and the
majority of whom, if such committee is composed of more than two directors,
shall be independent directors. The Compensation Committee shall fix from time
to time the compensation of the Chief Executive Officer of the Corporation, the
four other most highly compensated officers of the Corporation who were either
serving as executive officers of the Corporation at the end of the last
completed fiscal year or are likely to be declared one of the four such officers
at the end of the current fiscal year, all other members of the Board of
Directors who are officers or employees of the Corporation, all members of the
Executive Committee, if any, of the Corporation who are officers or employees of
the Corporation, and such other officers or employees of the Corporation as the
Board of Directors may from time to time by resolution designate. The
Compensation Committee shall also perform such functions as may be delegated to
it under the provisions of any bonus, supplemental compensation, special
compensation or stock option plan of the Corporation. In connection therewith,
the Compensation Committee may appoint such subcommittees or assistants as it
shall deem necessary. The Compensation Committee shall keep written minutes of
the business transacted at each meeting and report such minutes to the Board of
Directors at the next regular meeting.
9. Executive Committee. At any time and from time to time, the Board
of Directors may by resolution designate an Executive Committee consisting of
such number of directors of the Corporation as the resolution establishing such
Executive Committee shall designate, which Committee shall have and may exercise
all such powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation as the Board of Directors may, in the
resolution establishing such Committee, grant to it consistent with the
provisions of the General Corporation Law. The Board of Directors shall have the
power at any time to change the membership of any Executive Committee so
created, to increase or decrease the number of directors who shall be members,
to fill all vacancies in it, or to dissolve it. The Board of Directors or, upon
resolution of the Board, the Executive Committee, may make rules
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for the conduct of its business and may appoint such other subcommittees and
assistants as it shall from time to time deem necessary. The presence of members
of the Executive Committee having the power to vote a majority of the total
number of votes held by members of the Executive Committee shall constitute a
quorum for the transaction of business. The Executive Committee shall keep
written minutes of the business transacted at each meeting and report such
minutes to the Board of Directors at the next regular meeting.
10. Additional Committees. The Board of Directors may in its
discretion appoint such other committees, and the Board of Directors or any
committee thereof may, in its discretion, appoint one or more subcommittees of
any committee, which, to the extent of the authority conferred by the
resolutions appointing them, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the Corporation. A
majority of any such committee or subcommittee composed of more than two members
may determine its action and fix the time and place of its meetings, unless the
Board of Directors or the committee establishing such subcommittee shall
otherwise provide. The Board of Directors or any committee shall have power at
any time to dissolve any such committee or subcommittee formed by it.
11. Compensation. Each director who is not an employee or officer of
the Corporation or its subsidiaries or of The Dai-Ichi Kangyo Bank, Limited or
its subsidiaries, in consideration of his or her serving as such, shall be
entitled to receive from the Corporation such compensation for such periods or
such fees for attendance at meetings of the Board or of any committee, or both,
as the Board shall from time to time determine. The Board may provide that the
Corporation shall reimburse each director or member of a committee or
subcommittee for any expenses incurred by him or her on account of his or her
attendance at any such meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation or any of its subsidiaries or
affiliates in any other capacity and receiving compensation therefor.
12. Rules and Procedures. Each committee may fix its own rules and
procedures and shall meet at such times and places as may be provided by such
rules, by resolution of the committee or by call of the chairman of the
committee. Notice of meetings of each committee, other than of regular meetings
provided for by its rules or resolutions, shall be given to committee members.
The presence of a majority of its members, but not less than two, shall
constitute a quorum of any committee, and all questions shall be decided by a
majority vote of the members present at the meeting. Only the Board of Directors
shall have the power to fill vacancies in any committee. All action taken at any
meeting of a committee or any subcommittee thereof, shall be recorded in minutes
of the meeting and each committee or subcommittee shall report such minutes to
the Board of Directors at the next regular meeting of the Board and shall
deliver such minutes to the Secretary of the Corporation to be filed with the
books and records of the Corporation.
The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member or members at any meeting of the committee. In addition, in the absence
or disqualification of a member of a
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committee, if no alternate member has been designated by the Board of Directors,
the member or members present at any meeting and not disqualified from voting,
whether or not they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of the absent or
disqualified member.
Members of the Board of Directors or any committee thereof may
participate in a meeting of the Board or committee, as the case may be, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at the meeting.
Any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee may be taken without a meeting if all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
13. Application of Article. Whenever any provision of any other
document relating to any committee or subcommittee of the Corporation named
therein shall be in conflict with any provision of this Article III, the
provisions of this Article III shall govern, except that if such other document
shall have been approved by a vote of the Board of Directors or a vote of the
holders of a majority of the votes entitled to be cast by the holders of the
Common Stock of the Corporation, voting together as a single class, the
provisions of such other document shall govern.
ARTICLE IV
OFFICERS
1. Number. The officers of the Corporation shall include a Chairman
of the Board, a Chief Executive Officer, a President, one or more Vice Chairmen,
one or more Vice Presidents, a Secretary, a Chief Financial Officer, a
Treasurer, a Controller, a General Counsel and such other officers as may be
appointed in accordance with the provisions of Section 3 of this Article IV. Any
number of offices may be held by the same person.
2. Election, Term of Office and Qualifications. Each officer
specifically designated in Section 1 of this Article IV shall be chosen by the
Board of Directors within sixty (60) days after each annual election of
directors, and shall hold his or her office until a successor shall have been
chosen and qualified or until his or her earlier death or until he or she shall
resign or shall have been removed in the manner provided in Section 4 of this
Article IV. The Chairman of the Board and the President shall be directors. No
other officer need be a director.
3. Other Officers. The Board of Directors from time to time may
choose other officers or agents, including, but not limited to, a Chief
Operating Officer, one or more Assistant Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, and one or more Assistant
Controllers, each of whom shall hold office for such period, have such authority
and perform such duties as are provided in these By-Laws or as the Board of
Directors
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from time to time may determine. The Chairman of the Board, the President or the
Chief Executive Officer may appoint any such other officers or agents, other
than a Chief Operating Officer, fix their term of office, and prescribe their
respective authorities and duties.
4. Removal. Any officer may be removed either with or without cause
by the vote of a majority of the directors; provided that any officer who
reports to either the Chief Executive Officer or President or to some other
officer who in turn reports to the Chief Executive Officer or the President may
also be removed by action of the Chief Executive Officer or the President or
such other officer, as the case may be.
5. Resignations. Any officer may resign at any time by giving
written notice of such resignation to the Board of Directors, the Chairman of
the Board, the President, the Chief Executive Officer or the Chief Operating
Officer. Unless otherwise specified therein, such resignation shall take effect
upon receipt thereof by the Board of Directors or by any such officer and the
acceptance of a resignation shall not be necessary to make it effective.
6. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause may be filled for
the unexpired portion of the term in the manner prescribed by these By-Laws
for the regular election or appointment to such office.
7. The Chairman of the Board. The Chairman of the Board shall
preside at meetings of the Board at which he or she is present, and shall give
counsel and advice to the Board and the officers of the Corporation on all
subjects touching the welfare of the Corporation and the conduct of its
business. He or she shall perform such other duties as the Board may from time
to time determine. The Chairman shall be a member of the Board of Directors. The
Chairman shall have the power to sign all certificates, contracts, obligations
and other instruments of the Corporation.
8. The President. Unless otherwise determined by the Board of
Directors and except as otherwise vested in the Chief Executive Officer (if such
position shall be held by a different person), the President shall be the chief
executive officer of the Corporation and, subject to the overall direction and
control of the Board of Directors, shall have general charge of the business,
affairs and property of the Corporation and shall be a member of the Board of
Directors. In the event of the death, absence, unavailability or disability of
the Chairman of the Board, the President shall exercise all the powers and
discharge all the duties of the Chairman. The President shall have power to sign
all certificates, contracts, obligations and other instruments of the
Corporation. The President shall do and perform all such other duties and may
exercise such other powers as from time to time may be assigned to him by these
By-Laws or by the Board of Directors or by the Executive Committee, if any.
9. Chief Executive Officer. The Chief Executive Officer shall be the
chief executive officer of the Corporation and, subject to the overall direction
and control of the Board of Directors, shall have general charge and control of
the business and affairs of the Corporation. In the event of the death, absence,
unavailability or disability of the Chairman of the Board or the President, the
Chief Executive Officer shall exercise all the powers and discharge all the
duties of the Chairman. The Chief Executive Officer shall do and perform all
such other duties and may
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exercise such other powers as from time to time may be assigned to him or her by
these By-Laws or by the Board of Directors or by the Executive Committee, if
any. The Chief Executive Officer shall have the power to sign all certificates,
contracts, obligations and other instruments of the Corporation.
10. The Chief Operating Officer. In the event the Board of Directors
shall choose a Chief Operating Officer, the Chief Operating Officer shall be the
chief operating officer of the Corporation responsible for directing,
administering and coordinating the business operations of the Corporation in
accordance with policies, goals and objectives established by the Board of
Directors. The Chief Operating Officer shall generally assist the Chairman, the
President and the Chief Executive Officer and perform such other duties as the
Board or the Chairman, the President or the Chief Executive Officer shall
prescribe. The Chief Operating Officer shall have the power to sign all
certificates, contracts, obligations and other instruments of the Corporation.
11. The Vice Chairmen. The Vice Chairmen shall generally assist the
Chairman, the President, the Chief Executive Officer and the Chief Operating
Officer and perform such other duties as the Board or the Chairman or the
President shall prescribe. The Vice Chairmen shall have power to sign all
certificates, contracts, obligations and other instruments of the Corporation.
12. The Vice Presidents and Assistant Vice Presidents. The Vice
Presidents and Assistant Vice Presidents shall perform such duties and may
exercise such powers as from time to time may be assigned to him or her by these
By-Laws or by the Board of Directors, the Executive Committee, if any, the
Chairman of the Board, a Vice Chairman of the Board, the President, the Chief
Executive Officer or the Chief Operating Officer. The Board of Directors, the
Executive Committee, if any, the Chairman of the Board, the President, the Chief
Executive Officer or the Chief Operating Officer may designate one or more Vice
Presidents as Executive Vice Presidents or Senior Vice Presidents. In the event
of the death, absence, unavailability or disability of the Chairman of the
Board, the President, the Chief Executive Officer or the Chief Operating
Officer, the Board of Directors may, in its discretion, designate one or more
Vice Presidents who shall, for the time being, act as Chairman of the Board,
President, Chief Executive Officer or Chief Operating Officer; and when so
acting, such Vice Presidents shall have all of the powers and discharge all of
the duties of the Chairman of the Board, the President, the Chief Executive
Officer or the Chief Operating Officer, except as otherwise provided in Section
5 of Article III hereof. Each Vice President who has been designated an
Executive Vice President or Senior Vice President shall, except where by law the
signature of the President is required, possess the same power as the President
to sign all certificates, contracts, obligations and other instruments of the
Corporation.
13. The Secretary and the Assistant Secretaries. The Secretary
shall:
(a) Attend meetings of the stockholders and the Board of
Directors, keep the minutes of such meetings and cause
the same to be recorded in books provided for that
purpose;
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(b) Prepare, or cause to be prepared, and submit to the
Inspectors of election at each meeting of the
stockholders a certified list, in alphabetical order, of
the names of the stockholders entitled to vote at such
meeting, together with the class and number of shares of
stock held by each;
(c) See that all notices are duly given in accordance with
the provisions of these By-Laws or as required by
statute;
(d) Be custodian of the records and minutes of the
Corporation, the Board of Directors and any committees
or subcommittees thereof, and of the seal of the
Corporation; see that the seal is affixed, if necessary,
to all stock certificates prior to their issuance and to
all documents the execution of which on behalf of the
Corporation under its seal shall have been duly
authorized and attest the seal when so affixed;
(e) See that all books, reports, statements, certificates
and other documents and records required by law to be
kept or filed are properly kept or filed; and
(f) In general, perform all duties and have all powers
incident to the office of Secretary and perform such
other duties and have such other powers as from time to
time may be assigned to him or her by these By-Laws or
by the Board of Directors.
At the request of the Secretary, or in his or her absence or
disability, any Assistant Secretary shall perform any of the duties of the
Secretary and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Secretary. Except where by law the signature of
the Secretary is required, each of the Assistant Secretaries shall possess the
same power as the Secretary to sign certificates, contracts, obligations and
other instruments of the Corporation, and to affix the seal of the Corporation
to such instruments and attest the same.
14. Chief Financial Officer. The Chief Financial Officer shall,
subject to the control of the Board of Directors, keep and maintain, or cause to
be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable times
be open to inspection by any director. The Chief Financial Officer shall be
empowered, from time to time, to require from the officers or agents of the
Corporation reports or statements giving such information as he or she may
desire with respect to any and all financial transactions of the Corporation.
The Chief Financial Officer shall deposit all moneys and other valuables in the
name and the credit of the Corporation with such depositaries as may be
designated by the Board of Directors. The Chief Financial Officer shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, shall
render to the President and directors, whenever they request it, an account of
all of his or her transactions as Chief Financial Officer and of the
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financial condition of the Corporation and shall have other powers and perform
such other duties as may be prescribed by the Board or these By-Laws. The Chief
Financial Officer shall have the power to sign all certificates, contracts,
obligations and other instruments of the Corporation.
15. The Treasurer and the Assistant Treasurers. The Treasurer shall,
subject to the control of the Board of Directors and except as such powers and
duties are otherwise vested in the Chief Financial Officer (if such position
shall be held by a different person), have the care and custody of the funds
including the borrowing thereof, the securities, receipts and disbursements of
the Corporation; cause all moneys and other valuable effects to be deposited in
the name and to the credit of the Corporation, in such banks or trust companies
or with such bankers of other depositaries as shall be selected by the Board of
Directors or Audit Committee, or pursuant to authority conferred by the Board of
Directors or Audit Committee; cause the funds of the Corporation to be disbursed
by checks or drafts upon the authorized depositaries of the Corporation; cause
to be taken and preserved paper vouchers for all moneys disbursed; render to the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Financial Officer, the Chief Operating Officer, the Board of Directors or the
Audit Committee, whenever requested, an account of his or her transactions as
Treasurer; in general, perform all duties and have all powers incident to the
office of Treasurer and perform such other duties and have such other powers as
from time to time may be assigned to him or her by these By-Laws or by the Board
of Directors. The Treasurer shall have the power to sign all certificates,
contracts, obligations and other instruments of the Corporation.
At the request of the Treasurer, or in his or her absence or
disability, the Assistant Treasurer, or in case there shall be more than one
Assistant Treasurer, the Assistant Treasurer designated by the Board of
Directors, the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Financial Officer or the Chief Operating Officer, shall
perform any of the duties of the Treasurer and, when so acting, shall have all
the powers of, and be subject to all the restrictions upon, the Treasurer.
Except where by law the signature of the Treasurer is required, each of the
Assistant Treasurers shall possess the same power as the Treasurer to sign all
certificates, contracts, obligations and other instruments of the Corporation.
16. The Controller and the Assistant Controllers. The Controller
shall cause to be kept correct books of accounts of all the business
transactions of the Corporation, shall see that adequate audits thereof are
currently and regularly made, shall examine and certify the accounts of the
Corporation, shall render to the Board of Directors, the Audit Committee, the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Financial Officer or the Chief Operating Officer, whenever requested, an account
of the financial condition of the Corporation, and shall report to the Board of
Directors, to the Audit Committee or to such officers as the Board of Directors
may require. He or she shall perform such other duties and have such other
powers as from time to time may be assigned to him or her by the Board of
Directors.
At the request of the Controller, or in his or her absence or
disability, the Assistant Controller, or in case there shall be more than one
Assistant Controller, the Assistant Controller designated by the Board of
Directors or by the Chairman of the Board, the President, the Chief
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Executive Officer or the Chief Operating Officer, shall perform any of the
duties of the Controller and, when so acting, shall have all the powers of, and
be subject to all the restrictions upon, the Controller.
17. General Counsel. The General Counsel shall be the chief legal
officer of the Corporation and shall have responsibility for the general
supervision of all matters of a legal nature concerning the Corporation. He or
she shall perform all such duties commonly incident to his or her office or as
properly required of him or her by the Chairman of the Board of Directors, the
President, the Chief Executive Officer or such other officer or officers to whom
he or she is directly responsible. The General Counsel shall have the power to
sign certificates, contracts, opinions and other documents of or on behalf of
the Corporation.
18. Voting Shares in Other Corporations. Unless otherwise directed
by the Board of Directors, shares in other corporations which are held by the
Corporation shall be represented and voted only by the Chairman of the Board of
Directors, the Chief Executive Officer, the President or a proxy or proxies
appointed by any of them.
19. Contracts. Any officer having the power to sign certificates,
contracts, obligations and other instruments of the Corporation may delegate
such power to any other officer or employee of the Corporation, provided, that
the officer having delegated such power shall be accountable for the actions of
such other officer or employee.
ARTICLE V
CERTIFICATES OF STOCK
1. Form, Transfer. The interest of each stockholder of the
Corporation shall be evidenced by a certificate or certificates for shares of
stock in such form as the Board of Directors may from time to time prescribe.
The shares of stock of the Corporation shall be transferable on the books of the
Corporation by the holder thereof in person or by his or her attorney upon
surrender for cancellation of a certificate or certificates for the same number
of shares, with an assignment and power of transfer endorsed thereon or attached
thereto, duly executed, and with such proof of the authenticity of the signature
as the Corporation or its agents may require.
2. Signatures. The certificates of stock shall be signed in the name
of the Corporation by the Chairman of the Board, the Chief Executive Officer,
the President, any Vice Chairman or any Vice President and by the Secretary or
the Treasurer or an Assistant Secretary or an Assistant Treasurer (except that
where any such certificate is countersigned either (a) by a transfer agent other
than the Corporation or its employee or (b) by a registrar other than the
Corporation or its employee, any other signature on any such certificate may be
a facsimile) and shall be countersigned and registered in such a manner, if any,
as the Board of Directors may by resolution prescribe. In case any officer,
transfer agent or registrar who shall have signed, or whose facsimile signature
or signatures shall have been used on any such certificate or certificates shall
cease to be such officer, transfer agent or registrar of the Corporation or
these
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By-Laws shall be amended to eliminate his or her office before such certificate
or certificates shall have been delivered by the Corporation, such certificate
or certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not ceased to be such
officer or officers of the Corporation or such office had not been eliminated,
and such issuance and delivery shall constitute adoption thereof by the
Corporation.
3. Lost Certificates. No certificate for shares of stock in the
Corporation shall be issued in place of any certificate alleged to have been
lost, stolen or destroyed, except upon production of such evidence of such loss,
theft or destruction and upon delivery to the Corporation of a bond of indemnity
in such amount, not exceeding double the value of the stock, upon such terms and
secured by such surety, as the Board of Directors in its discretion may require.
ARTICLE VI
CHECKS, NOTES, ETC.
All checks and drafts on the Corporation's bank accounts and all
bills of exchange and promissory notes, and all acceptances, obligations, bonds
and other orders or instruments for the payment of money, shall be signed by
such officer or officers, employee or employees, or agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors or by the
Executive Committee, if any. The Board of Directors may, in its discretion, also
provide for the countersignature or registration of any or all such orders,
instruments or obligations for the payment of money.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of
January in each year.
ARTICLE VIII
CORPORATE SEAL
The corporate seal shall be in such form as shall from time to time
be approved by the Board of Directors. If and when so authorized by the Board of
Directors, a duplicate of the seal may be kept and used by the Secretary or
Treasurer or by any Assistant Secretary or Assistant Treasurer. In lieu of the
corporate seal, when so authorized by the Board of Directors, a facsimile of
such corporate seal may be impressed or affixed or reproduced.
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ARTICLE IX
AMENDMENTS
These By-Laws may be altered, amended or repealed at any meeting of
the Board of Directors or the stockholders, provided that notice of such
proposed alteration, amendment or repeal is 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 these By-Laws), as
the case may be.
ARTICLE X
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
1. Subject to Section 3 of this Article X, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
2. Subject to Section 3 of this Article X, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the
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<PAGE> 19
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
3. Any indemnification under this Article X (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the current or former director,
officer, employee or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article X. Such determination shall be made, with respect to a person who
is a director or officer at the time of such determination, (a) by a majority
vote of the directors who were not parties to such action, suit or proceeding,
even though less than a quorum, (b) by a committee of such directors designated
by majority vote of such directors, even though less than a quorum, (c) if such
a quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion or (d)
by the stockholders. To the extent, however, that a current or former director
or officer of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith, without the necessity of authorization in the specific
case.
4. Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this Article X. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors or any person or persons designated by the Board deems
appropriate.
5. The indemnification and advancement of expenses provided by or
granted pursuant to this Article X shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any agreement, contract, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office. The provisions of this
Article X shall not be deemed to preclude the indemnification of any person, who
is not specified in Sections 1 and 2 of this Article X but whom the Corporation
has the power or obligation to indemnify under the provisions of the General
Corporation Law, or otherwise.
6. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her
18
<PAGE> 20
status as such, whether or not the Corporation would have the power or the
obligation to indemnify him or her against such liability under the provisions
of this Article X.
7. For purposes of this Article X, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provision of this Article X with respect to the
resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued. For purposes of
this Article X, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article X.
8. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article X shall, unless otherwise provided when
authorized or ratified, 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, administrators and personal representatives of such a person.
9. Notwithstanding anything contained in this Article X to the
contrary, except for proceedings to enforce rights to indemnification, the
Corporation shall not be obligated to indemnify any director, officer, employee
or agent in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
ARTICLE XI
RELIANCE ON RECORDS AND REPORTS
Each director, officer or member of any committee or subcommittee
designated by, or by authority of, the Board of Directors, shall in the
performance of his or her duties, be fully protected in relying in good faith
upon the books of account or other records of the Corporation or any of its
subsidiaries, or upon reports made to the Corporation or any of its subsidiaries
by any official of the Corporation or of a subsidiary or by an independent
certified public accountant or by an appraiser selected with reasonable care by
the Board of Directors or by any such committee or subcommittee.
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<PAGE> 1
EXHIBIT 4.1
(FRONT SIDE OF STOCK CERTIFICATE)
CLASS A COMMON STOCK SHARES
NUMBER
CUSIP 125577106
C ____________________
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE THE CIT GROUP, INC.
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS IS TO CERTIFY THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF CLASS A COMMON STOCK. $.01 PAR VALUE,
of The CIT Group, Inc., transferable on the books of the Corporation by the
holder hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate is not valid unless
countersigned and registered by the Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated: COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK
BY , TRANSFER AGENT
AND REGISTRAR
AUTHORIZED OFFICER
SECRETARY CHAIRMAN OF THE BOARD
(CORPORATE SEAL)
<PAGE> 2
(REVERSE SIDE OF STOCK CERTIFICATE)
THE CIT GROUP, INC.
The Corporation will furnish without charge to each stockholder who so
requests, the designations, powers, preferences and relative participating,
optional or other special rights of each class of stock or series thereof of
the Corporation and the qualifications, limitations or restrictions of such
preferences and/or rights. Any such request should be made to the Secretary of
the Corporation or to the Transfer Agent and Registrar named on the face of
this certificate.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
__________
JT TEN - as joint tenants with (Minor)
right of survivorship under Uniform gifts
and not as tenants in common to Minors Act
____________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, ______________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Shares of the stock represented by the within certificate, and do hereby
irrevocably constitute and appoint __________________________, Attorney, to
transfer the said stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated _____________________________
______________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE> 3
SIGNATURE(S) GUARANTEED: THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED GUARANTEE MEDALLION PROGRAM).
