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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported) May 26, 1994
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GENERAL MOTORS CORPORATION
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(Exact name of registrant as specified in its charter)
STATE OF DELAWARE 1-143 38-0572515
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
767 Fifth Avenue, New York, New York 10153-0075
3044 West Grand Boulevard, Detroit, Michigan 48202-3091
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (313)-556-5000
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
Exhibit 3(i) Restated Certificate of Incorporation as amended to
May 26, 1994, reflecting amendments to Article Fourth to increase
from 1 billion to 2 billion shares the common stock of the
Corporation, par value $1-2/3, which the Corporation is authorized to
issue.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GENERAL MOTORS CORPORATION
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(Registrant)
Date June 2, 1994
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s/Wallace W. Creek
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(Wallace W. Creek, Comptroller)
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EXHIBIT 3(i)
G E N E R A L M O T O R S C O R P O R A T I O N
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RESTATED
CERTIFICATE OF INCORPORATION
As Amended
May 26, 1994
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GENERAL MOTORS CORPORATION
RESTATED
CERTIFICATE OF INCORPORATION
As Amended
May 26, 1994
INDEX
ARTICLE FIRST............................................................ 1
ARTICLE SECOND........................................................... 1
ARTICLE THIRD............................................................ 1
ARTICLE FOURTH........................................................... 3
DIVISION I: COMMON STOCK, CLASS E COMMON STOCK
AND CLASS H COMMON STOCK............................... 3
(a) Dividend Rights.......................................... 3
(1) Dividends on Common Stock........................... 3
(2) Dividends on Class E Common Stock................... 4
(3) Dividends on Class H Common Stock................... 4
(4) Discrimination Among Common Stock,
Class E Common Stock and Class H Common Stock....... 5
(5) Available Separate Consolidated Net Income of EDS... 5
(6) Available Separate Consolidated Net Income of GMHE.. 6
(b) Voting Rights............................................ 7
(c) Exchangeability.......................................... 7
(d) Liquidation Rights....................................... 13
(e) Subdivision or Combination............................... 14
DIVISION II: PREFERRED STOCK....................................... 15
DIVISION III: PREFERENCE STOCK...................................... 18
DIVISION IV: MISCELLANEOUS......................................... 20
ARTICLE FIFTH........................................................... 21
ARTICLE SIXTH........................................................... 21
ARTICLE SEVENTH......................................................... 22
ARTICLE EIGHTH.......................................................... 24
ARTICLE NINTH........................................................... 24
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GENERAL MOTORS CORPORATION
Restated
Certificate of Incorporation
As Amended
May 26, 1994
ARTICLE FIRST
The name of the Corporation is
GENERAL MOTORS CORPORATION
ARTICLE SECOND
The registered office of the Corporation shall be located at 1209 Orange
Street, in the City of Wilmington, County of New Castle, State of Delaware.
The name of its registered agent in charge thereof is The Corporation Trust
Company, 1209 Orange Street, in the City of Wilmington, County of New Castle,
State of Delaware.
ARTICLE THIRD
The nature of the business of the Corporation and the objects and purposes
proposed to be transacted, promoted, or carried on by it, are as follows, to-
wit:
(a) To manufacture, buy, sell and deal in automobiles, trucks, cars, boats,
flying machines and other vehicles, their parts and accessories, and kindred
articles, and generally to conduct an automobile business in all its branches.
(b) To purchase or otherwise acquire, lease, assign, mortgage, pledge or
otherwise dispose of any trade names, trade marks, concessions, inventions,
formulae, improvements, processes of any nature whatsoever, copyrights, and
letters patent of the United States and of foreign countries, and to accept
and grant licenses thereunder.
(c) To subscribe or cause to be subscribed for, and to purchase or otherwise
acquire, hold for investment, sell, assign, transfer, mortgage, pledge,
exchange, distribute or otherwise dispose of the whole or any part of the
shares of the capital stock, bonds, coupons, mortgages, deeds of trust,
debentures, securities, obligations, notes and other evidences of indebtedness
of any corporation, stock company or association, now or hereafter existing,
and whether created by or under the laws of the State of Delaware, or
otherwise; and while owners of any of said shares of capital stock or bonds
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or other property to exercise all the rights, powers and privileges of
ownership of every kind and description, including the right to vote thereon,
with power to designate some person for that purpose from time to time to the
same extent as natural persons might or could do.
(d) To purchase, hold, sell and reissue the shares of its own capital stock.
(e) To buy, lease, or otherwise acquire, so far as may be permitted by law,
the whole or any part of the business, good-will, and assets of any person,
firm, association or corporation (either foreign or domestic) engaged in a
business of the same general character as that for which this Corporation is
organized.
(f) To endorse, guarantee and secure the payment and satisfaction of bonds,
coupons, mortgages, deeds of trust, debentures, securities, obligations and
evidences of indebtedness, and also to guarantee and secure the payment or
satisfaction of interest on obligations and of dividends on shares of the
capital stock of other corporations; also to assume the whole or any part of
the liabilities, existing or prospective, of any person, corporation, firm or
association; and to aid in any manner any other person or corporation with
which it has business dealings, or whose stocks, bonds, or other obligations
are held or are in any manner guaranteed by the Corporation, and to do any
other acts and things for the preservation, protection, improvement, or
enhancement of the value of such stocks, bonds, or other obligations.
(g) To engage in any other manufacturing or mercantile business of any kind or
character whatsoever, and to that end to acquire, hold, own and dispose of any
and all property, assets, stocks, bonds and rights of any and every kind.
(h) Without in any particular limiting any of the objects and powers of the
Corporation, it is hereby expressly declared and provided that the Corporation
shall have power to do all things herein before enumerated, and also to issue
or exchange stocks, bonds, and other obligations in payment for property
purchased or acquired by it, or for any other object in or about its business;
to borrow money without limit; to mortgage or pledge its franchises, real or
personal property, income and profits accruing to it, any stocks, bonds or
other obligations, or any property which may be acquired by it, and to secure
any bonds or other obligations by it issued or incurred.
(i) To carry on any business whatsoever which the Corporation may deem proper
or convenient in connection with any of the foregoing purposes or otherwise,
or which may be calculated, directly or indirectly, to promote the interests
of the Corporation or to enhance the value of its property; to conduct its
business in this State, in other States, in the District of Columbia, in the
Territories and Colonies of the United States, and in foreign countries; and
to hold, purchase, mortgage and convey real and personal property, either in
or out of the State of Delaware, and to have and to exercise all the powers
conferred by the laws of Delaware upon corporations formed under the act
pursuant to and under which this Corporation is formed.
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ARTICLE FOURTH
The total authorized capital stock of the Corporation is as follows:
3,706,000,000 shares, of which 6,000,000 shares shall be Preferred Stock,
without par value ("Preferred Stock"), 100,000,000 shares shall be Preference
Stock, $0.10 par value ("Preference Stock"), and 3,600,000,000 shares shall be
Common Stock, of which 2,000,000,000 shares shall be Common Stock, $1-2/3 par
value ("Common Stock"), 1,000,000,000 shares shall be Class E Common Stock,
$0.10 par value ("Class E Common Stock") and 600,000,000 shares shall be Class
H Common Stock, $0.10 par value ("Class H Common Stock").
DIVISION I:
COMMON STOCK, CLASS E COMMON STOCK
AND CLASS H COMMON STOCK.
The Common Stock, the Class E Common Stock and the Class H Common Stock shall
be identical in all respects and shall have equal rights and privileges,
except as otherwise provided in this Article FOURTH. The relative rights,
privileges and restrictions of the shares of each class are as follows:
(a) Dividend Rights.
Subject to the express terms of any outstanding series of Preferred Stock or
Preference Stock, dividends may be paid in cash or otherwise upon the Common
Stock, the Class E Common Stock and the Class H Common Stock out of the assets
of the Corporation in the relationship and upon the terms provided for below
with respect to each such class:
(1) Dividends on Common Stock.
Dividends on Common Stock may be declared and paid only to the extent of
the assets of the Corporation legally available therefor reduced by an
amount equal to the sum of (A) the paid in surplus attributable to the
Class E Common Stock; (B) that portion of the earned surplus of the
Corporation attributable to the Available Separate Consolidated Net
Income of EDS (as defined in subparagraph (a)(5)) earned since the date
of the acquisition by the Corporation of Electronic Data Systems
Corporation, its subsidiaries and successors ("EDS"); (C) the paid in
surplus attributable to the Class H Common Stock; and (D) that portion of
the earned surplus of the Corporation attributable to the Available
Separate Consolidated Net Income of GMHE (as defined in subparagraph
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(a)(6)) earned since the date of the acquisition by the Corporation of GM
Hughes Electronics Corporation, its subsidiaries and successors ("GMHE").
Dividends declared and paid with respect to shares of Common Stock and
any adjustments to surplus resulting from either (i) the repurchase or
issuance of any shares of Common Stock or (ii) any other reason deemed
appropriate by the Board of Directors shall be subtracted from or added
to the amounts available for the payment of dividends on Common Stock.
Subject to the foregoing, the declaration and payment of dividends on the
Common Stock, and the amount thereof, shall at all times be solely in the
discretion of the Board of Directors of the Corporation.
(2) Dividends on Class E Common Stock.
Dividends on the Class E Common Stock may be declared and paid only to the
extent of the assets of the Corporation legally available therefor
reduced by an amount equal to the sum of (A) the paid in surplus
attributable to the Common Stock; (B) the paid in surplus attributable to
the Class H Common Stock; and (C) the earned surplus of the Corporation
exclusive of that portion of such earned surplus attributable to the
Available Separate Consolidated Net Income of EDS earned since the date
of the acquisition of EDS by the Corporation. Dividends declared and paid
with respect to shares of Class E Common Stock and any adjustments to
surplus resulting from either (i) the repurchase or issuance of any
shares of Class E Common Stock or (ii) any other reason deemed
appropriate by the Board of Directors shall be subtracted from or added
to the amounts available for the payment of dividends on Class E Common
Stock. Subject to the foregoing, the declaration and payment of
dividends on the Class E Common Stock, and the amount thereof, shall at
all times be solely in the discretion of the Board of Directors of the
Corporation.
(3) Dividends on Class H Common Stock.
Dividends on the Class H Common Stock may be declared and paid only to the
extent of the assets of the Corporation legally available therefor
reduced by an amount equal to the sum of (A) the paid in surplus
attributable to the Common Stock; (B) the paid in surplus attributable to
the Class E Common Stock; and (C) the earned surplus of the Corporation
exclusive of that portion of such earned surplus attributable to the
Available Separate Consolidated Net Income of GMHE earned since the date
of the acquisition of GMHE by the Corporation. Dividends declared and
paid with respect to shares of Class H Common Stock and any adjustments
to surplus resulting from either (i) the repurchase or issuance of any
shares of Class H Common Stock or (ii) any other reason deemed
appropriate by the Board of Directors shall be subtracted from or added
to the amounts available for the payment of dividends on Class H Common
Stock. Subject to the foregoing, the declaration and payment of dividends
on the Class H Common Stock, and the amount thereof, shall at all times
be solely in the discretion of the Board of Directors of the Corporation.
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(4) Discrimination Among Common Stock, Class E Common Stock and
Class H Common Stock.
The Board of Directors, subject to the provisions of subparagraphs (a)(1),
(a)(2) and (a)(3), may, in its sole discretion, declare dividends payable
exclusively to the holders of Common Stock, exclusively to the holders of
Class E Common Stock, exclusively to the holders of Class H Common Stock
or to the holders of any two or more of such classes in equal or unequal
amounts, notwithstanding the respective amounts of surplus available for
dividends to each class, the respective voting and liquidation rights of
each class, the amount of prior dividends declared on each class or any
other factor.
(5) Available Separate Consolidated Net Income of EDS.
The "Available Separate Consolidated Net Income of EDS" shall mean the
separate net income of EDS on a consolidated basis, determined in
accordance with generally accepted accounting principles without giving
effect to any adjustment which would result from accounting for the
acquisition of EDS by the Corporation using the purchase method,
calculated for each quarterly accounting period and multiplied by a
fraction, the numerator of which shall be the weighted average number of
shares of Class E Common Stock outstanding during such accounting period
and the denominator of which shall initially be 121,888,889; provided,
that such fraction shall in no event be greater than one. The denominator
of the foregoing fraction shall be adjusted from time to time as deemed
appropriate by the Board of Directors of the Corporation (i) to reflect
subdivisions (by stock split or otherwise) and combinations (by reverse
stock split or otherwise) of the Class E Common Stock and stock dividends
payable in shares of Class E Common Stock to holders of Class E Common
Stock, (ii) to reflect the fair market value of contributions of cash or
property by the Corporation to EDS or of cash or property of the
Corporation to, or for the benefit of, employees of EDS in connection
with employee benefit plans or arrangements of the Corporation or any of
its subsidiaries, (iii) to reflect the number of shares of capital stock
of the Corporation contributed to, or for the benefit of, employees of
EDS in connection with benefit plans or arrangements of the Corporation
or any of its subsidiaries, (iv) to reflect payments by EDS to the
Corporation of amounts applied to the repurchase by the Corporation of
shares of Class E Common Stock, and (v) to reflect the number of shares
of Class E Common Stock repurchased by EDS and no longer outstanding;
provided, that in the case of adjustments pursuant to clause (iv) or
clause (v) above, adjustments shall be made only to the extent that the
Board of Directors of the Corporation, in its sole discretion, shall have
approved such repurchase of shares by the Corporation or EDS and, in the
case of clause (iv) above, shall declare such payments by EDS to be
applied to such repurchase. Any changes in the numerator or denominator
of the foregoing fraction occurring after the end of a quarterly
accounting period shall not result in an adjustment to the Available
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Separate Consolidated Net Income of EDS for such quarterly accounting
period or any prior period. For all purposes, determination of the
Available Separate Consolidated Net Income of EDS shall be in the sole
discretion of the Board of Directors of the Corporation and shall be
final and binding on all stockholders of the Corporation.
(6) Available Separate Consolidated Net Income of GMHE.
The "Available Separate Consolidated Net Income of GMHE" shall mean the
separate net income of GMHE on a consolidated basis, determined in
accordance with generally accepted accounting principles without giving
effect to any adjustment which would result from accounting for the
acquisition of GMHE by the Corporation using the purchase method,
calculated for each quarterly accounting period and multiplied by a
fraction, the numerator of which shall be the weighted average number of
shares of Class H Common Stock outstanding during such accounting period
and the denominator of which shall initially be 200,000,000; provided,
that such fraction shall in no event be greater than one. The denominator
of the foregoing fraction shall be adjusted from time to time as deemed
appropriate by the Board of Directors of the Corporation (i) to reflect
subdivisions (by stock split or otherwise) and combinations (by reverse
stock split or otherwise) of the Class H Common Stock and stock dividends
payable in shares of Class H Common Stock to holders of Class H Common
Stock, (ii) to reflect the fair market value of contributions of cash or
property by the Corporation to GMHE or of cash or property of the
Corporation to, or for the benefit of, employees of GMHE in connection
with employee benefit plans or arrangements of the Corporation or any of
its subsidiaries, (iii) to reflect the number of shares of capital stock
of the Corporation contributed to, or for the benefit of, employees of
GMHE in connection with benefit plans or arrangements of the Corporation
or any of its subsidiaries, (iv) to reflect payments by GMHE to the
Corporation of amounts applied to the repurchase by the Corporation of
shares of Class H Common Stock, and (v) to reflect the number of shares
of Class H Common Stock repurchased by GMHE and no longer outstanding;
provided, that in the case of adjustments pursuant to clause (iv) or
clause (v) above, adjustments shall be made only to the extent that the
Board of Directors of the Corporation, in its sole discretion, shall have
approved such repurchase of shares by the Corporation or GMHE and, in the
case of clause (iv) above, shall declare such payments by GMHE to be
applied to such repurchase. Any changes in the numerator or denominator
of the foregoing fraction occurring after the end of a quarterly
accounting period shall not result in an adjustment to the Available
Separate Consolidated Net Income of GMHE for such quarterly accounting
period or any prior period. For all purposes, determination of the
Available Separate Consolidated Net Income of GMHE shall be in the sole
discretion of the Board of Directors of the Corporation and shall be
final and binding on all stockholders of the Corporation.
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(b) Voting Rights.
The holders of Common Stock, Class E Common Stock and Class H Common Stock
shall vote together as a single class on all matters; provided, however,
that (i) the holders of Common Stock voting separately as a class shall
be entitled to approve by the vote of a majority of the shares of Common
Stock then outstanding any amendment, alteration or repeal of any of the
provisions of this Certificate of Incorporation which adversely affects
the rights, powers or privileges of the Common Stock; (ii) the holders of
Class E Common Stock voting separately as a class shall be entitled to
approve by the vote of a majority of the shares of Class E Common Stock
then outstanding any amendment, alteration or repeal of any of the
provisions of this Certificate of Incorporation which adversely affects
the rights, powers or privileges of the Class E Common Stock; (iii) the
holders of Class H Common Stock voting separately as a class shall be
entitled to approve by the vote of a majority of the shares of Class H
Common Stock then outstanding any amendment, alteration or repeal of any
of the provisions of this Certificate of Incorporation which adversely
affects the rights, powers or privileges of the Class H Common Stock;
(iv) any increase in the number of authorized shares of Class E Common
Stock shall be subject to approval by both (A) the holders of a majority
of the shares of Common Stock, Class E Common Stock and Class H Common
Stock then outstanding, voting together as a single class based upon
their respective voting rights, and (B) the holders of a majority of the
shares of Class E Common Stock then outstanding, voting separately as a
class; and (v) any increase in the number of authorized shares of Class H
Common Stock shall be subject to approval by both (A) the holders of a
majority of the shares of Common Stock, Class E Common Stock and Class H
Common Stock then outstanding, voting together as a single class based
upon their respective voting rights, and (B) the holders of a majority of
the shares of Class H Common Stock then outstanding, voting separately as
a class. Subject to adjustment pursuant to paragraph (e) hereof, each
holder of Common Stock shall be entitled to one vote, in person or by
proxy, for each share of Common Stock standing in his name on the stock
transfer books of the Corporation; each holder of Class E Common Stock
shall be entitled to one-quarter (0.25) of a vote, in person or by proxy,
for each share of Class E Common Stock standing in his name on the stock
transfer books of the Corporation, and each holder of Class H Common
Stock shall be entitled to one-half (0.5) of a vote, in person or by
proxy, for each share of Class H Common Stock standing in his name on the
stock transfer books of the Corporation.
(c) Exchangeability.
(1) After December 31, 1994, the Board of Directors of the Corporation,
in its sole discretion and by a majority vote of the directors then in
office, may at any time effect a recapitalization of the Corporation
by declaring that all of the outstanding shares of Class E Common
Stock shall be exchanged for fully paid and nonassessable shares of
Common Stock in accordance with the
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applicable Exchange Rate (as defined in subparagraph (c)(7)); provided,
that the Board of Directors may effect such recapitalization only if,
during each of the five full fiscal years preceding such
recapitalization, the Board of Directors has declared and paid cash
dividends on the Class E Common Stock equal to or greater than the
Class E Payout Ratio for such year (as defined in subparagraph (c)(3))
multiplied by the Available Separate Consolidated Net Income of EDS
for the prior fiscal year.
(2) After December 31, 1995, the Board of Directors of the Corporation,
in its sole discretion and by a majority vote of the directors then in
office, may at any time effect a recapitalization of the Corporation
by declaring that all of the outstanding shares of Class H Common
Stock shall be exchanged for fully paid and nonassessable shares of
Common Stock in accordance with the applicable Exchange Rate (as
defined in subparagraph (c)(7)); provided, that the Board of Directors
may effect such recapitalization only if, during each of the five full
fiscal years preceding such recapitalization, the Board of Directors
has declared and paid cash dividends on the Class H Common Stock equal
to or greater than the Class H Payout Ratio for such year (as defined
in subparagraph (c)(4)) multiplied by the Available Separate
Consolidated Net Income of GMHE for the prior fiscal year.
(3) For purposes of this paragraph (c) of Division I of this Article
FOURTH, the term "Class E Payout Ratio" shall mean for any fiscal year
the lesser of (A) 0.25 or (B) the quotient of (x) the total cash
dividends paid on the Common Stock in respect of such fiscal year,
divided by (y) (i) the consolidated net income of the Corporation and
its subsidiaries for such fiscal year minus (ii) the Available
Separate Consolidated Net Income of EDS for such fiscal year minus
(iii) the Available Separate Consolidated Net Income of GMHE for such
fiscal year; provided, that nothing in this paragraph (c) shall be
deemed to limit or restrict the authority of the Board of Directors of
the Corporation to declare and pay dividends on Class E Common Stock
and Common Stock at such times and in such amounts as the Board of
Directors in its sole discretion (subject to paragraph (a)) may
determine.
(4) For purposes of this paragraph (c) of Division I of this Article
FOURTH, the term "Class H Payout Ratio" shall mean, for any fiscal
year, the lesser of (A) 0.25 or (B) the quotient of (x) the total cash
dividends paid on the Common Stock in respect of such fiscal year,
divided by (y) (i) the consolidated net income of the Corporation and
its subsidiaries for such fiscal year minus (ii) the Available
Separate Consolidated Net Income of EDS for such fiscal year minus
(iii) the Available Separate Consolidated Net Income of GMHE for such
fiscal year; provided, that nothing in this paragraph (c) shall be
deemed to limit or restrict the authority of the Board of Directors of
the Corporation to declare and pay dividends on Class H Common Stock
and Common Stock at such times and in such amounts as the Board of
Directors in its sole discretion (subject to paragraph (a)) may
determine.
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(5) In the event of the sale, transfer, assignment or other disposition
by the Corporation of the business of EDS substantially as an entirety
to a person, entity or group of which the Corporation is not a
majority owner (whether by merger, consolidation, sale of assets or
stock, liquidation, dissolution, winding up or otherwise), effective
upon the consummation of such sale, transfer, assignment or other
disposition and automatically without any action on the part of the
Corporation or its Board of Directors or on the part of the holders of
shares of Class E Common Stock, the Corporation shall be recapitalized
and all outstanding shares of Class E Common Stock shall be exchanged
for fully paid and nonassessable shares of Common Stock at the
applicable Exchange Rate (as defined in subparagraph (c)(7)).
(6) In the event of the sale, transfer, assignment or other disposition
by the Corporation of substantially all of the business of Hughes
Aircraft Company, its subsidiaries and successors or of substantially
all of the other business of GMHE to a person, entity or group of
which the Corporation is not a majority owner (whether by merger,
consolidation, sale of assets or stock, liquidation, dissolution,
winding up or otherwise), effective upon the consummation of such
sale, transfer, assignment or other disposition and automatically
without any action on the part of the Corporation or its Board of
Directors or on the part of the holders of shares of Class H Common
Stock, the Corporation shall be recapitalized and all outstanding
shares of Class H Common Stock shall be exchanged for fully paid and
nonassessable shares of Common Stock at the applicable Exchange Rate
(as defined in subparagraph (c)(7)).
(7) For purposes of this paragraph (c) of Division I of this Article
FOURTH, the term "Exchange Rate" applicable to the Class E Common
Stock and to the Class H Common Stock shall mean the number of shares
of Common Stock for which each share of Class E Common Stock and Class
H Common Stock, respectively, shall be exchangeable pursuant to
subparagraphs (c)(1) and (c)(5) or (c)(2) and (c)(6), as the case may
be, of this paragraph (c) determined as follows: Each share of Class E
Common Stock or Class H Common Stock, as the case may be, shall be
exchangeable for such number of shares of Common Stock (calculated to
the nearest five decimal places) as is determined by dividing (A) the
product resulting from multiplying (i) the Average Market Price Per
Share (as defined in subparagraph (c)(8) or (c)(9), as the case may
be) of such Class E Common Stock or Class H Common Stock by (ii) 1.2,
by (B) the Average Market Price Per Share of Common Stock.
(8) For purposes of computing the Exchange Rate applicable to the Class
E Common Stock pursuant to this paragraph (c) of Division I of this
Article FOURTH, the Average Market Price Per Share of Common Stock or
Class E Common Stock, as the case may be, shall mean the average of
the daily closing prices per share for such Common Stock
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or Class E Common Stock for the fifteen (15) consecutive trading days
ending one (1) trading day prior to either (A) in the case of an
exchange pursuant to subparagraph (c)(1), the date the Exchange
Notice (as defined in subparagraph (c)(12)) is mailed or (B) in the
case of an exchange pursuant to subparagraph (c)(5), the date of the
public announcement by the Corporation or one of its subsidiaries of
the first to occur of the following: that the Corporation or one of
its subsidiaries (1) has entered into an agreement in principle with
respect to such transaction or (2) has entered into a definitive
agreement with respect thereto. The closing price for each day shall
be the closing sales price as reported in The Wall Street Journal or,
if not reported therein, as reported in another newspaper of national
circulation chosen by the Board of Directors of the Corporation or, in
case no such sale takes place on such day, the average of the closing
bid and asked prices regular way on the New York Stock Exchange or if
the Common Stock or Class E Common Stock is not then listed or
admitted to trading on the New York Stock Exchange, on the largest
principal national securities exchange on which such stock is then
listed or admitted to trading, or if not listed or admitted to trading
on any national securities exchange, then the last reported sa1e
prices for such shares in the over-the-counter market, as reported on
the National Association of Securities Dealers Automated Quotation
System, or, if such sale prices shall not be reported thereon, the
average of the closing bid and asked prices so reported, or, if such
bid and asked prices shall not be reported thereon, as the same shall
be reported by the National Quotation Bureau Incorporated, or, in all
other cases, an appraised market value furnished by any New York Stock
Exchange member firm selected from time to time by the Board of
Directors or the Finance Committee or Executive Committee of the
Corporation for that purpose.
(9) For purposes of computing the Exchange Rate applicable to the Class
H Common Stock pursuant to this paragraph (c) of Division I of this
Article FOURTH, the Average Market Price Per Share of Common Stock or
Class H Common Stock, as the case may be, shall mean the average of
the daily closing prices per share for such Common Stock or Class H
Common Stock for the fifteen (15) consecutive trading days ending one
(1) trading day prior to either (A) in the case of an exchange
pursuant to subparagraph (c)(2), the date the Exchange Notice (as
defined in subparagraph (c)12)) is mailed or (B) in the case of an
exchange pursuant to subparagraph (c)(6), the date of the public
announcement by the Corporation or one of its subsidiaries of the
first to occur of the following: that the Corporation or one of its
subsidiaries (1) has entered into an agreement in principle with
respect to such transaction or (2) has entered into a definitive
agreement with respect thereto. The closing price for each day shall
be the closing sales price as reported in The Wall Street Journal or,
if not reported therein, as reported in another newspaper of national
circulation chosen by the Board of Directors of the Corporation or, in
case no such sale takes place on such day, the average of the closing
bid and asked prices regular way on the New York Stock Exchange, or if
the Common Stock or Class H Common Stock is not then listed or
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admitted to trading on the New York Stock Exchange, on the largest
principal national securities exchange on which such stock is then
listed or admitted to trading, or if not listed or admitted to trading
on any national securities exchange, then the last reported sale
prices for such shares in the over-the-counter market, as reported on
the National Association of Securities Dealers Automated Quotation
System, or, if such sale prices shall not be reported thereon, the
average of the closing bid and asked prices so reported, or, if such
bid and asked prices shall not be reported thereon, as the same shall
be reported by the National Quotation Bureau Incorporated, or, in all
other cases, an appraised market value furnished by any New York Stock
Exchange member firm selected from time to time by the Board of
Directors or the Finance Committee or Executive Committee of the
Corporation for that purpose.
(10) No fraction of a share of Common Stock shall be issued in
connection with the exchange of shares of Class E Common Stock or
Class H Common Stock into Common Stock, but in lieu thereof, each
holder of Class E Common Stock or Class H Common Stock, as the case
may be, who would otherwise be entitled to a fractional interest of a
share of Common Stock shall, upon surrender of such holder's
certificate or certificates representing shares of Class E Common
Stock or Class H Common Stock, receive a cash payment (without
interest) (the "Fractional Payment") equal to the product resulting
from multiplying (A) the fraction of a share of Common Stock to which
such holder would otherwise have been entitled by (B) the Average
Market Price Per Share of the Common Stock on the Exchange Date (as
defined in subparagraph (c)(12)).
(11) No adjustments in respect of dividends shall be made upon the
exchange of any shares of Class E Common Stock or Class H Common
Stock; provided, however, that if the Exchange Date with respect to
Class E Common Stock or Class H Common Stock shall be subsequent to
the record date for the payment of a dividend or other distribution
thereon or with respect thereto but prior to the payment or
distribution thereof, the registered holders of such shares at the
close of business on such record date shall be entitled to receive the
dividend or other distribution payable on such shares on the date set
for payment of such dividend or other distribution notwithstanding the
exchange of such shares or the Corporation's default in payment of the
dividend or distribution due on such date.
(12) At such time or times as the Corporation exercises its right to
cause all of the shares of Class E Common Stock or Class H Common
Stock to be exchanged for Common Stock in accordance with subparagraph
(c)(1) or (c)(2) of this paragraph (c) of Division I of this Article
FOURTH and at such time as the Corporation causes the exchange of such
Class E Common Stock or Class H Common Stock for Common Stock as a
result of a sale, transfer, assignment or other disposition of the
type referred to in subparagraph (c)(5) or (c)(6) of this paragraph
(c), the Corporation shall give notice of such exchange to the holders
of Class E Common Stock or Class H Common Stock, as the case may be,
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<PAGE>14
whose shares are to be exchanged, by mailing by first-class mail a
notice of such exchange (the "Exchange Notice"), in the case of an
exchange in accordance with subparagraph (c)(1) or (c)(2) not less
than thirty (30) nor more than sixty (60) days prior to the date fixed
for such exchange (the "Exchange Date"), and in the case of an
exchange in accordance with subparagraph (c)(5) or (c)(6) as soon as
practicable before or after the Exchange Date, in either case to their
last addresses as they shall appear upon the Corporation's books.
Each such Exchange Notice shall specify the Exchange Date and the
Exchange Rate applicable to such exchange, and shall state that
issuance of certificates representing Common Stock to be received upon
exchange of shares of Class E Common Stock or Class H Common Stock, as
the case may be, shall be upon surrender of certificates representing
such shares of Class E Common Stock or Class H Common Stock.
(13) Before any holder of shares of Class E Common Stock or Class H
Common Stock shall be entitled to receive certificates representing
such shares of Common Stock, he shall surrender at such office as the
Corporation shall specify certificates for such shares of Class E
Common Stock or Class H Common Stock, as the case may be, duly
endorsed to the Corporation or in blank or accompanied by proper
instruments of transfer to the Corporation or in blank, unless the
Corporation shall waive such requirement. The Corporation will, as
soon as practicable after such surrender of certificates representing
such shares of Class E Common Stock or Class H Common Stock, issue and
deliver at the office of the transfer agent representing the Common
Stock to the person for whose account such shares of Class E Common
Stock or Class H Common Stock were so surrendered, or to his nominee
or nominees, certificates representing the number of whole shares of
Common Stock to which he shall be entitled as aforesaid, together with
the Fractional Payment, if any.
(14) From and after any applicable Exchange Date, all rights of a
holder of shares of Class E Common Stock or Class H Common Stock which
were exchanged for shares of Common Stock shall cease except for the
right, upon surrender of the certificates representing such shares of
Class E Common Stock or Class H Common Stock, as the case may be, to
receive certificates representing shares of Common Stock together with
a Fractional Payment, if any, as contemplated by subparagraphs
(c)(10) and (c)(13) of this paragraph (c) and rights to dividends as
provided in subparagraph (c)(11). No holder of a certificate which
immediately prior to the applicable Exchange Date represented shares
of Class E Common Stock or Class H Common Stock, as the case may be,
shall be entitled to receive any dividend or other distribution with
respect to shares of Common Stock until surrender of such holder's
certificate for a certificate or certificates representing shares of
Common Stock. Upon such surrender, there shall be paid to the holder
the amount of any dividends or other distributions (without interest)
which theretofore became payable with respect to a record date after
the Exchange Date, but which were not paid by reason of the foregoing,
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<PAGE>15
with respect to the number of whole shares of Common Stock represented
by the certificate or certificates issued upon such surrender. From
and after an Exchange Date applicable to the Class E Common Stock or
the Class H Common Stock, the Corporation shall, however, be entitled
to treat the certificates for Class E Common Stock or Class H Common
Stock, as the case may be, which have not yet been surrendered for
exchange as evidencing the ownership of the number of whole shares of
Common Stock for which the shares of Class E Common Stock or Class H
Common Stock represented by such certificates shall have been
exchanged, notwithstanding the failure to surrender such certificates.
(15) If any certificate for shares of Common Stock is to be issued in a
name other than that in which the certificate representing shares of
Class E Common Stock or Class H Common Stock surrendered in exchange
therefor is registered, it shall be a condition of such issuance that
the person requesting such issuance shall pay any transfer or other
taxes required by reason of the issuance of certificates for such
shares of Common Stock in a name other than that of the record holder
of the certificate surrendered, or shall establish to the satisfaction
of the Corporation or its agent that such tax has been paid or is not
applicable. Notwithstanding anything to the contrary in this
paragraph (c), the Corporation shall not be liable to a holder of
shares of Class E Common Stock or Class H Common Stock for any shares
of Common Stock or dividends or distributions thereon delivered to a
public official pursuant to any applicable abandoned property, escheat
or similar law.
(16) At such time as any Exchange Notice is delivered with respect to
any shares of Class E Common Stock or Class H Common Stock, or at the
time of the Exchange Date, if earlier, the Corporation shall have
reserved and kept available, solely for the purpose of issuance upon
exchange of the outstanding shares of Class E Common Stock or Class H
Common Stock, as the case may be, such number of shares of Common
Stock as shall be issuable upon the exchange of the number of shares
of Class E Common Stock or Class H Common Stock specified or to be
specified in the applicable Exchange Notice, provided, that nothing
contained herein shall be construed to preclude the Corporation from
satisfying its obligations in respect of the exchange of the
outstanding shares of Class E Common Stock or Class H Common Stock, as
the case may be, by delivery of purchased shares of Common Stock which
are held in the treasury of the Corporation.
(d) Liquidation Rights.
In the event of the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after there shall have
been paid or set apart for the holders of Preferred Stock and Preference
Stock the full preferential amounts to which they are entitled, the
holders of Common Stock, Class E Common Stock and Class H Common Stock
shall be entitled to receive the assets of the Corporation remaining for
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<PAGE>16
distribution to its stockholders, on a per share basis in proportion to
the respective per share liquidation units of such classes. Subject to
adjustment pursuant to paragraph (e) hereof, each share of Common Stock,
Class E Common Stock and Class H Common Stock shall initially be entitled
to liquidation units of one (1.0), one-quarter (0.25), and one-half
(0.5), respectively.
(e) Subdivision or Combination.
(1) If after December 20, 1985, the Corporation shall in any manner
subdivide (by stock split or otherwise) or combine (by reverse stock
split or otherwise) the outstanding shares of the Common Stock, Class
E Common Stock or Class H Common Stock, or pay a stock dividend in
shares of any class to holders of that class, the per share voting
rights specified in paragraph (b) and the per share liquidation units
specified in paragraph (d) of Class E Common Stock and Class H Common
Stock relative to Common Stock shall be appropriately adjusted so as
to avoid any dilution in the aggregate voting or liquidation rights of
any class. Distribution by the Corporation of shares of any class of
its common stock as a dividend on any other class of its common stock
shall not require an adjustment pursuant to this paragraph (e)(1).
(2) If after December 20, 1985, the Corporation shall distribute shares
of Class E Common Stock or Class H Common Stock (such class being
hereinafter referred to as the "Distributed Class") as a dividend (the
"Dividend") on Common Stock (such class being hereinafter referred to
as the "Recipient Class"), then the per share liquidation rights of
the classes of common stock set forth in paragraph (d) above, as they
may have been previously adjusted, shall be adjusted so that:
(A) each holder of shares of any class other than the Recipient
Class shall be entitled to, with respect to such holder's interest
in each such class, the same percentage of the aggregate
liquidation units of all shares of the Corporation's common stock
immediately after the Dividend as such holder was entitled to, with
respect to such holder's interest in such class immediately prior
to the Dividend; and
(B) each holder of shares of the Recipient Class shall be entitled
to, with respect to such holder's interest in the Recipient Class
and all shares of the Distributed Class issued with respect to such
holder's shares of the Recipient Class, the same percentage of the
aggregate liquidation units of all shares of the Corporation's
common stock immediately after the Dividend as such holder was
entitled to with respect to such holder's interest in the Recipient
Class immediately prior to the Dividend; provided, that any
adjustment pursuant to this subparagraph (e)(2)(B) shall be made to
the liquidation units of the Recipient Class.
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<PAGE>17
Notwithstanding the foregoing provisions of this subparagraph (e)(2)
or any other provision of this Article FOURTH, in the event of the
payment of the first Dividend of Class H Common Stock on the Common
Stock prior to September 16, 1986, no adjustment pursuant to this
subparagraph (e)(2) shall be made to the liquidation rights of the
Class H Common Stock, except to the extent that such Dividend shall
exceed 20,000,000 shares of Class H Common Stock, but an adjustment
shall be made to the liquidation rights of the Common Stock and the
Class E Common Stock so that: (i) the ratio of the aggregate
liquidation units of the Common Stock to the aggregate liquidation
units of the Class E Common Stock, determined immediately prior to
the Dividend, is the same as the ratio of the aggregate liquidation
units of the Common Stock plus the Class H Common Stock distributed
pursuant to the Dividend to the aggregate liquidation units of the
Class E Common Stock, determined immediately after the Dividend;
and (ii) the sum of the aggregate liquidation units of the Common
Stock plus the Class E Common Stock, computed immediately prior to
the Dividend, equals the sum of the aggregate liquidation units of
the Common Stock plus the Class E Common Stock, computed
immediately after the Dividend.
In no event will any adjustments be made pursuant to this
subparagraph (e)(2) if the adjustment called for herein would
reduce the liquidation units of any class of common stock to less
than zero.
(3) The determination of any adjustment required under this paragraph
(e) shall be made by the Corporation's Board of Directors; any such
determination shall be binding and conclusive upon all holders of
shares of all classes of the Corporation's common stock. Following any
such determination, the Secretary of the Corporation shall maintain a
record of any such adjustment.
DIVISION II:
PREFERRED STOCK.
A statement of the relative rights of the holders of Preferred Stock and a
statement of the limits of variation between each series of Preferred Stock as
to rate of dividends and price of redemption, a statement of the provisions
in these respects of the Preferred Stock-$5 Series and the Preferred Stock-
$3.75 Series, and a statement of the voting powers and the designations,
powers, privileges and rights, and the qualifications, limits or restrictions
thereof of the various series thereof, except so far as the Board of Directors
is expressly authorized to fix the same by resolution or resolutions for the
various series of the Preferred Stock, are as follows:
Preferred Stock of the Corporation may be issued in various series as may be
determined from time to time by the Board of Directors, each such series to
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<PAGE>18
be distinctly designated, provided, however, that of the Preferred Stock
authorized or to be authorized, 1,875,366 shares shall be designated as
Preferred Stock-$5 Series and 1,000,000 shares shall be designated as
Preferred Stock-$3.75 Series. The Board of Directors may from time to time
authorize the issuance of Preferred Stock-$5 Series additional to the said
1,875,366 shares. All shares of any one series of Preferred Stock shall be
alike in every particular, and all series shall rank equally and be identical
in all respects except as to the dividend rate and the amount payable upon the
exercise of the right to redeem.
The dividend rate on the Preferred Stock-$5 Series shall be $5.00 per annum
and no more, the dividend rate on the Preferred Stock-$3.75 Series shall be
$3.75 per annum and no more, and the dividend on the Preferred Stock of each
series additional to the $5 Series and the $3.75 Series shall be such rate as
may be fixed by the Board of Directors in the resolution or resolutions
providing for the issuance of the Preferred Stock of such series, and as shall
be stated on the face or back of the certificates of stock therefor.
The amount payable upon the exercise of the right to redeem the Preferred
Stock-$5 Series shall be $120.00 a share and accrued dividends, the amount
payable upon the exercise of the right to redeem the Preferred Stock-$3.75
Series shall be $100.00 a share and accrued dividends, and the amount payable
on the exercise of the right to redeem Preferred Stock of each series
additional to the $5 Series and the $3.75 Series shall be an amount as may be
fixed by the Board of Directors in the resolution or resolutions providing for
the issuance of the Preferred Stock of such series, and as shall be stated on
the face or back of the certificates of stock therefor.
All other provisions herein set forth in respect of the Preferred Stock of the
Corporation shall apply to all the Preferred Stock of the Corporation,
irrespective of any variations between the Preferred Stock of the different
series.
The holders of the Preferred Stock shall be entitled to receive cumulative
dividends, when and as declared by the Board of Directors, at the rates fixed
for the respective series in the Certificate of Incorporation or in the
resolution or resolutions of the Board of Directors providing for the issuance
of the respective series, and no more, payable quarterly on the dates to be
fixed by the By-Laws. The periods between such dates commencing on such dates
are herein designated as "dividend periods." Dividends on all shares of any
one series shall commence to accrue and be cumulative from the first day of
the current dividend period within which shares of such series are first
issued, but in the event of the issue of additional shares of such series
subsequent to the date of the first issue of said shares of such series, all
dividends paid on the shares of such series prior to the issue of such
additional shares and all dividends declared payable to holders of record of
shares of such series of a date prior to such issue shall be deemed to have
been paid in respect of the additional shares so issued. Such dividends
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<PAGE>19
on the Preferred Stock shall be in preference and priority to any payment on
any other class of stock of the Corporation.
The dividends on the Preferred Stock shall be cumulative and shall be payable
before any dividend on the Common Stock, Class E Common Stock or Class H
Common Stock or any series of the Preference Stock shall be paid or set apart
so that if in any year dividends at the rates determined for the respective
series of the Preferred Stock shall not be paid thereon, the deficiency shall
be payable before any dividend shall be paid upon or set apart for the Common
Stock, Class E Common Stock or Class H Common Stock or any series of the
Preference Stock. Dividends shall not be declared and paid on the shares of
Preferred Stock of any one series for any dividend period unless dividends
have been or are contemporaneously paid or declared and set apart for payment
thereof on the shares of Preferred Stock of all series, for all the dividend
periods terminating on the same or an earlier date.
Whenever all cumulative dividends on the Preferred Stock outstanding shall
have been paid and a sum sufficient for the payment of the next ensuing
quarterly dividend on the Preferred Stock outstanding shall have been set
aside from the surplus or net profits, the Board of Directors may declare
dividends on the Common Stock, Class E Common Stock or Class H Common Stock or
any series of the Preference Stock, payable then or thereafter, out of any
remaining surplus or net profits, and no holders of any shares of any series
of Preferred Stock, as such, shall be entitled to share therein; provided,
however, that subsequent to the issue of any Preferred Stock herein provided
to be issued, additional to 1,875,366 shares of Preferred Stock-$5 Series, no
dividends other than dividends payable in Common Stock, Class E Common Stock
or Class H Common Stock shall be paid on the Common Stock, Class E Common
Stock or Class H Common Stock or any series of the Preference Stock unless the
aggregate of the Common Stock, Class E Common Stock and Class H Common Stock
capital and surplus shall exceed $335,700,600 by an amount not less than
$100.00 in respect of each such additional share of Preferred Stock issued and
outstanding; and provided further, that no cash dividends shall be paid on the
Common Stock, Class E Common Stock or Class H Common Stock or any series of
the Preference Stock after the issue of Preferred Stock so long as the net
quick assets in excess of current liabilities of the Corporation are less than
$75.00 in respect of each share of outstanding Preferred Stock. Net quick
assets referred to above shall be made up of cash, drafts, notes and accounts
receivable, inventories, and marketable securities, and the aforesaid current
liabilities shall consist of obligations maturing within one year, as set
forth in the books of the Corporation.
At the option of the Board of Directors, the Preferred Stock shall be subject
to redemption at the amounts fixed for the respective series in the
Certificate of Incorporation or in the resolution or resolutions of the Board
of Directors providing for the issuance of the respective series, together, in
the case of each class or series, with accrued dividends on the shares to be
redeemed, on any dividend paying date in such manner as the Board of Directors
may determine.
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<PAGE>20
The holders of the Preferred Stock shall not have any voting power whatsoever,
except upon the question of selling, conveying, transferring or otherwise
disposing of the property and assets of the Corporation as an entirety and
except as otherwise required by law; provided, however:
In the event that the Corporation shall fail to pay any dividend on the shares
of any series of the Preferred Stock when it regularly becomes due, and
failure to make such payment shall continue for a period of six months, the
holders of the shares of Preferred Stock as a class, during the continuance
of such non-payment and until the Corporation shall have paid all accrued
dividends on the shares of all series of Preferred Stock, shall have the
exclusive right to elect one quarter of the total number of directors of the
Corporation.
Unless the holders of at least three-fourths of the shares of Preferred Stock,
as a class, then outstanding shall consent thereto either in writing or at a
special meeting, the Corporation shall not mortgage or pledge or place any
specific lien upon the whole or any part of the property of the Corporation,
but this prohibition shall not be construed to apply to the execution of any
purchase money mortgage or any other purchase money lien, nor to the
assumption of any mortgage or other lien upon property purchased, nor to the
renewal or renewals thereof or to substitutions therefor, in whole or in part,
nor shall it prevent the Corporation at any time from pledging securities
belonging to it for the purpose of securing cash to be used in the ordinary
course of its business, provided such cash advances are procured upon its
obligations which shall mature not more than three years from the date
thereof; nor shall any amendment to any provision contained in this
Certificate of Incorporation in reference to the rights and security of the
holders of the Preferred Stock be authorized, unless such amendment is
consented to by the holders of three-fourths of the shares of Preferred Stock
then issued and outstanding.
DIVISION III:
PREFERENCE STOCK*
- --------------------
* In accordance with the provisions of Division III of this Certificate of
Incorporation, as amended, the Board of Directors has adopted resolutions
providing for the issuance of, and there were outstanding as of May 1,
1994: (A) 17,825,000 shares of Series A Preference Stock, $0.10 par value
(effective June 28, 1991); (B) 11,075,000 shares of Series B 9 1/8%
Preference Stock, par value $0.10 per share, stated value $100.00 per
share, such shares are represented by Depositary Shares, each representing
one-fourth of a share of Series B 9 1/8% Preference Stock (effective
December 9, 1991); (C) 3,000,000 shares of Series C Convertible Preference
Stock, par value $0.10 per share, such shares are represented by
Depositary Shares, each representing one-tenth of a share of Series C
Convertible Preference Stock (effective February 14, 1992); (D) 3,925,000
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<PAGE>21
The Board of Directors is authorized, subject to limitations prescribed by law
and the provisions of this Article FOURTH, to provide for the issuance of
Preference Stock from time to time in one or more series of any number of
shares, with a distinctive serial designation for each series, provided that
the aggregate number of shares issued and not cancelled of any and all such
series shall not exceed the total number of shares of Preference Stock
authorized by this Article FOURTH, all as shall hereafter be stated and
expressed in the resolution or resolutions providing for the issue of such
Preference Stock from time to time adopted by the Board of Directors. Subject
to said limitations, and provided that each series of Preference Stock shall
rank junior to the Preferred Stock with respect to the payment of dividends
and distributions in liquidation, each series of Preference Stock (a) may have
such voting powers, full or limited, or may be without voting powers; (b) may
be subject to redemption at such time or times and at such prices; (c) may be
entitled to receive dividends (which may be cumulative or noncumulative) at
such rate or rates, on such conditions, and at such times, and payable in
preference to, or in such relation to, the dividends payable on any other
class or classes or series of stock; (d) may have such rights upon the
dissolution of, or upon any distribution of the assets of, the Corporation;
(e) may be made convertible into, or exchangeable for, shares of any other
class or classes of or any other series of the same or any other class or
classes of stock of the Corporation or any other issuer, at such price or
- -----------------------------
shares of Series D 7.92% Preference Stock, par value $0.10 per share,
stated value $100.00 per share, such shares are represented by Depositary
Shares, each representing one-fourth of a share of Series D 7.92%
Preference Stock (effective July 15, 1992); and (E) 5,750,000 shares of
Series G 9.12% Preference Stock, par value $0.10 per share, stated value
$100.00 per share, such shares are represented by Depositary Shares, each
representing one-fourth of a share of Series G 9.12% Preference Stock
(effective December 15, 1992). The rights, preferences, powers,
limitations, and other terms pertaining to each such series of Preference
Stock are set forth in Certificates of Designations and a Certificate of
Decrease filed with the Secretary of State of the State of Delaware.
Copies of such documents may be obtained from the Office of the Corporate
Secretary of General Motors Corporation.
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<PAGE>22
prices or at such rates of exchange, and with such adjustments; (f) may be
entitled to the benefit of a sinking fund to be applied to the purchase or
redemption of shares of such series in such amount or amounts; (g) may be
entitled to the benefit of conditions and restrictions upon the creation of
indebtedness of the Corporation or any subsidiary, upon the issue of any
additional stock (including additional shares of such series or of any other
series) and upon the payment of dividends or the making of other distributions
on, and the purchase, redemption or other acquisition by the Corporation or
any subsidiary of any outstanding stock of the Corporation; and (h) may have
such other relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof; all as shall be stated in
said resolution or resolutions providing for the issue of such series of
Preference Stock.
Shares of any series of Preference Stock which have been redeemed (whether
through the operation of a sinking fund or otherwise) or which, if convertible
or exchangeable, have been converted into or exchanged for shares of stock of
any other class or classes shall have the status of authorized and unissued
shares of Preference Stock of the same series and may be reissued as a part of
the series of which they were originally a part or may be reclassified and
reissued as part of a new series of Preference Stock to be created by
resolution or resolutions of the Board of Directors or as part of any other
series of Preference Stock, all subject to the conditions or restrictions on
issuance set forth in the resolution or resolutions adopted by the Board of
Directors providing for the issue of any series of Preference Stock.
DIVISION IV:
MISCELLANEOUS.
From time to time, the Preferred Stock, the Preference Stock, the Common
Stock, the Class E Common Stock and the Class H Common Stock may be increased
or decreased according to law, and may be issued in such amounts and
proportions as shall be determined by the Board of Directors, and as may be
permitted by law, except that no shares of Preferred Stock in addition to
1,875,366 shares of the Preferred Stock-$5 Series shall be issued unless the
sum total of the Common Stock, Class E Common Stock and Class H Common Stock
capital and surplus shall exceed $335,700,600 by an amount at least equal to
$100.00 in respect of each additional share of the Preferred Stock to be
issued.
In the event of any liquidation or dissolution or winding up, whether
voluntary or otherwise, of the Corporation, the holders of the Preferred Stock
shall be entitled to be paid each series in full, as aforesaid, out of the
assets whether capital or surplus, $100.00 a share, and, in every case, the
unpaid dividends accrued on such shares, whether or not earned or declared,
before any distribution of the assets to be distributed shall be made to the
holders of Common Stock, Class E Common Stock or Class H Common Stock or any
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<PAGE>23
series of the Preference Stock; but the holders of such shares shall be
entitled to no further participation in such distribution. If the assets
distributable on such liquidation, dissolution or winding up shall be
insufficient to permit the payment to the holders of the Preferred Stock of
the full amount of $100.00 a share and accrued dividends as aforesaid, the
said assets shall be distributed pro rata among the holders of the respective
series of the Preferred Stock. After all payments are made as aforesaid, any
required payments shall be made with respect to the Preference Stock, if any,
outstanding, and the remaining assets and funds shall be divided among and
paid to the holders of Common Stock, Class E Common Stock and Class H Common
Stock pro rata in proportion to the respective per share liquidation units of
such classes. The merger or consolidation of the Corporation into or with any
other corporation shall not be or be deemed to be a distribution of assets or
a dissolution, liquidation or winding up for the purposes of this paragraph.
Any Preferred Stock, Preference Stock, Common Stock, Class E Common Stock or
Class H Common Stock, authorized hereunder or under any amendment hereof, in
the discretion of the Board of Directors, may be issued, except as herein
otherwise provided, in payment for property or services, or as bonuses to
employees of the Corporation or employees of subsidiary companies, or for
other assets or securities including cash, necessary or desirable, in the
judgment of the Board of Directors, to be purchased or acquired from time to
time for the Corporation, or for any other lawful purpose of the Corporation.
If it seems desirable so to do, the Board of Directors may from time to time
issue scrip for fractional shares of stock. Such scrip shall not confer upon
the holder any right to dividends or any voting or other rights of a
stockholder of the Corporation, but the Corporation shall from time to time,
within such time as the Board of Directors may determine or without limit of
time if the Board of Directors so determines, issue one or more whole shares
of stock upon the surrender of scrip for fractional shares aggregating the
number of whole shares issuable in respect of the scrip so surrendered,
provided that the scrip so surrendered shall be properly endorsed for transfer
if in registered form.
ARTICLE FIFTH
The Corporation is to have perpetual existence.
ARTICLE SIXTH
The private property of the stockholders shall not be subject to the payment
of corporate debts to any extent whatever.
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<PAGE>24
ARTICLE SEVENTH
The number of Directors of the Corporation, not less than three, shall be
fixed from time to time by the By-Laws and the number may be altered as
therein provided. In case of any increase in the number of Directors, the
additional Directors shall be elected as provided by the By-Laws, by the
Directors, or by the stockholders at an annual or special meeting. In case of
any vacancy in the Board of Directors, the remaining Directors, by affirmative
vote of a majority thereof, may elect a successor to hold office for the
unexpired portion of the term of the Director whose place is vacant and until
his successor shall be duly elected and qualified.
No Director shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a Director, except for
liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174, or any successor provision thereto, of the Delaware General
Corporation Law, or (iv) for any transaction from which the Director derived
an improper personal benefit.
In furtherance, and not in limitation of the powers conferred by law, the
Board of Directors are expressly authorized:
(a) To make, alter, amend and repeal the By-Laws of the Corporation.
(b) To remove at any time any officer elected or appointed by the Board of
Directors but only by the affirmative vote of a majority of the whole Board of
Directors. Any other officer or employee of the Corporation may be removed at
any time by a vote of the Board of Directors, or by any committee or
superior officer upon whom such power of removal may be conferred by the By-
Laws or by the vote of the Board of Directors.
(c) To designate, by resolution passed by a majority of the whole Board, two
or more of their number to constitute an executive committee, who, to the
extent provided in said resolution or in the By-Laws of the Corporation, shall
have and exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation, and shall have power to authorize
the seal of the Corporation to be affixed to all papers which may require it.
A majority of such committee shall constitute a quorum for the transaction of
business.
To designate any other standing committees by the affirmative vote of a
majority of the whole Board, and such standing committees shall have and may
exercise such powers as shall be conferred or authorized by the By-Laws,
including the power to cause the seal of the Corporation to be affixed to any
papers which may require it.
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(c-1) Every right of action by or on behalf of the Corporation or by any
stockholder against any past, present or future member of the Board of
Directors, officer or employee of the Corporation arising out of or in
connection with any bonus, stock option, performance achievement or other
incentive plan at any time approved by the stockholders of the Corporation,
irrespective of the place where action may be brought and irrespective of the
place of residence of any such Director, officer or employee, shall cease and
be barred by the expiration of three years from whichever is the later of (a)
the date of the act or omission in respect of which such right of action
arises or (b) the first date upon which there has been made generally
available to stockholders an annual report of the Corporation and a proxy
statement for the annual meeting of stockholders following the issuance of
such annual report, which annual report and proxy statement alone or together
set forth, for the related period, the amount of any credit to a reserve for
the purpose of any such plan, and the aggregate bonus, performance achievement
or other awards, and the aggregate options or other grants, made under any
such plan; and every right of action by any employee (past, present or future)
against the Corporation arising out of or in connection with any such plan
shall, irrespective of the place where action may be brought, cease and be
barred by the expiration of three years from the date of the act or omission
in respect of which such right of action arises.
(d) From time to time to fix and to vary the sum to be reserved over and above
its capital stock paid in before declaring any dividends; to direct and
determine the use and disposition of any surplus or net profits over and above
the capital stock paid in; to fix the time of declaring and paying any
dividend, and, unless otherwise provided in this Certificate or in the By-
Laws, to determine the amount of any dividend. All sums reserved as working
capital or otherwise may be applied from time to time to the acquisition or
purchase of its bonds or other obligations or shares of its own capital stock
or other property to such extent and in such manner and upon such terms as the
Board of Directors shall deem expedient and neither the stocks, bonds, or
other property so acquired shall be regarded as accumulated profits for the
purpose of declaring or paying dividends unless otherwise determined by the
Board of Directors, but shares of such capital stock so purchased or acquired
may be resold, unless such shares shall have been retired for the purpose of
decreasing the Corporation's capital stock as provided by law.
(e) From time to time to determine whether and to what extent, and at what
time and places and under what conditions and regulations the accounts and
books of the Corporation (other than the stock ledger), or any of them, shall
be open to the inspection of the stockholders; and no stockholder shall have
any right to inspect any account or book or document of Corporation, except as
conferred by statute or authorized by the Board of Directors or by a
resolution of the stockholders.
(f) With the written assent of the holders of two-thirds of its issued and
outstanding stock of all classes, without a meeting, or pursuant to the
affirmative vote in person or by proxy of the holders of two-thirds of its
issued and outstanding stock of all classes, at any meeting, either annual
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or special, called as provided in the By-Laws, the Board of Directors may
sell, convey, assign, transfer or otherwise dispose of, any part or all of the
property, assets, rights and privileges of the Corporation as an entirety, for
the stock, bonds, obligations or other securities of another corporation of
this or of any other State, Territory, Colony or Foreign Country, or for cash,
or partly cash, credit or property, or for such other consideration as the
Board of Directors, in their absolute and uncontrolled discretion, may
determine.
(g) The Corporation may by its By-Laws confer upon the Directors powers and
authorities additional to the foregoing and to those expressly conferred upon
them by statute.
ARTICLE EIGHTH
Both the stockholders and the Directors of the Corporation may hold their
meetings and the Corporation may have an office or offices in such place or
places outside of the State of Delaware as the By-Laws may provide, and the
Corporation may keep its books outside of the State of Delaware except as
otherwise provided by law.
ARTICLE NINTH
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation in the manner, now or
hereafter prescribed by statute, and all rights conferred on stockholders
herein are granted subject to this reservation.
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