Attached files
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8-K - FORM 8-K - CIT GROUP INC | y02702e8vk.htm |
EX-2.2 - EX-2.2 - CIT GROUP INC | y02702exv2w2.htm |
EX-3.2 - EX-3.2 - CIT GROUP INC | y02702exv3w2.htm |
EX-2.1 - EX-2.1 - CIT GROUP INC | y02702exv2w1.htm |
EX-99.1 - EX-99.1 - CIT GROUP INC | y02702exv99w1.htm |
Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CIT GROUP INC.
CERTIFICATE OF INCORPORATION
OF
CIT GROUP INC.
CIT Group Inc., a corporation organized and existing under the laws of the State of Delaware,
hereby certifies as follows:
1. The name of the corporation is CIT Group Inc. and the name under which the corporation was
originally incorporated is T-Sub Inc. The date of filing of its original Certificate of
Incorporation with the Secretary of State was March 12, 2001.
2. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with
Sections 242, 245 and 303 of the General Corporation Law of the State of Delaware, pursuant to the
Modified Second Amended Prepackaged Plan of Reorganization of CIT Group Inc. and CIT Group Funding
Company of Delaware LLC (the Prepackaged Plan). The Prepackaged Plan was confirmed by an order of
the U.S. Bankruptcy Court in the District of Delaware (the Bankruptcy Court) on December 8, 2009.
The Bankruptcy Court had jurisdiction of the proceeding for the reorganization of the Corporation
under the Bankruptcy Code.
3. The text of the Amended and Restated Certificate of Incorporation of the Corporation as
amended hereby is restated to read in its entirety, as follows:
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CIT GROUP INC.
OF
CIT GROUP INC.
First: The name of the corporation is CIT Group Inc. (the Corporation).
Second: The address of the Corporations registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle,
Delaware, and the name of the registered agent at such address is The Corporation Trust Company.
Third: The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
General Corporation Law).
Fourth:
(a) The total number of shares of stock that the Corporation shall have authority to issue is
seven hundred million (700,000,000), consisting of (i) one hundred million (100,000,000) shares of
preferred stock, par value $.01 per share (the Preferred Stock) and (ii) six hundred million
(600,000,000) shares of common stock, par value $.01 per share (the Common Stock).
(b) The board of directors of the Corporation (the Board of Directors) is hereby expressly
authorized at any time and from time to time to provide for the issuance of all or any shares of
the Preferred Stock in one or more classes or series and, by filing a certificate pursuant to the
applicable law of the State of Delaware (a Preferred Stock Designation), to establish the number
of shares to be included in each such class or series and to fix for each such class or series such
voting powers, full or limited, or no voting powers, and such distinctive designations, preferences
and relative, participating, optional or other special rights and such qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted
by the Board of Directors providing for the issuance of such class or series and to the fullest
extent as may now or hereafter be permitted by the General Corporation Law, including, without
limiting the generality of the foregoing, the authority to provide that any such class or series
may be (i) subject to redemption at such time or times and at such price or prices; (ii) entitled
to receive dividends (which may be cumulative or non-cumulative) at such 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 any other series; (iii) entitled to such rights upon the dissolution
of, or upon any distribution of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other series of the same
or any other class or classes of stock, or other securities or property, of the Corporation at such
price or prices or at such rates of exchange and with such adjustments; all as may be stated in
such resolution or resolutions. Unless otherwise provided in such resolution or resolutions
providing for any class or series of Preferred Stock, shares of Preferred Stock of such class or
series which shall be issued and thereafter acquired by the Corporation through purchase,
redemption, exchange, conversion or otherwise shall return to the status of authorized but unissued
Preferred Stock.
(c) The Common Stock shall be subject to the express terms of the Preferred Stock and any
series thereof. Except as may be provided in this Certificate of Incorporation or in a Preferred
Stock Designation or by applicable law, the holders of shares of Common Stock shall be entitled to
one vote for each such share upon all questions presented to the stockholders, the Common Stock
shall have the exclusive right to vote for the election of directors and for all other purposes,
and holders of Preferred Stock shall not be entitled to receive notice of any meeting of
stockholders at which they are not entitled to vote. The holders of the shares of Common Stock
shall at all times, except as otherwise provided in this Certificate of Incorporation or as
required by law, vote as one class, together with the holders of any other class or series of stock
of the Corporation accorded such general voting rights.
(d) The number of authorized shares of any class or classes of 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 stock of the Corporation entitled to vote and not by a vote of
each class of stock.
Fifth: In furtherance of, and not in limitation of, the powers conferred by law, the Board of
Directors is expressly authorized and empowered:
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(1) to adopt, amend or repeal the by-laws of the Corporation (the By-Laws), provided that
the By-Laws adopted by the Board of Directors under the powers hereby conferred may be amended or
repealed by the Board of Directors or by the stockholders having voting power with respect thereto,
provided further that, in the case of the stockholders, the affirmative vote of the holders of at
least 66 2/3% of the voting power of the then outstanding Voting Stock, voting as a single class,
shall be required in order for the stockholders to alter, amend or repeal any provisions of the
By-Laws or adopt any additional By-Laws; and
(2) from time to time to determine whether and to what extent, and at what times and places,
and under what conditions and regulations, the accounts and books of the Corporation, or any of
them, shall be open to inspection of stockholders; and, except as so determined or as expressly
provided in this Certificate of Incorporation or in any Preferred Stock Designation, no stockholder
shall have any right to inspect any account, book or document of the Corporation other than such
rights as may be conferred by applicable law.
The Corporation may in its By-Laws confer powers upon its directors in addition to the
foregoing and in addition to the powers and authorities expressly conferred upon them by the laws
of the State of Delaware.
Sixth:
(a) Subject to the rights of the holders of any class or series of Preferred Stock to elect
additional directors under specified circumstances, the number of directors of the Corporation
shall be fixed in such manner as may be prescribed by the By-Laws and may be increased or decreased
from time to time in such a manner as may be prescribed by the By-Laws. 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.
(b) Subject to the rights of the holders of any class or series of Preferred Stock to elect
additional directors under specified circumstances, at each annual meeting of the stockholders of
the Corporation, directors shall be elected in accordance with the provisions of the By-Laws to
hold office for a term expiring at the next annual meeting of the stockholders of the Corporation
and until their successors shall be elected and qualified, subject to their prior death,
resignation, retirement disqualification or removal from office.
(c) Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created directorships resulting
from any increase in the authorized number of directors, may be filled only by the affirmative vote
of a majority of the remaining directors, though less than a quorum of the Board of Directors, or
the sole remaining director, and directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders and until their successors shall have been duly elected and
qualified, subject to their prior
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death, resignation, retirement disqualification or removal from office. No decrease in the
number of authorized directors constituting the Board of Directors shall shorten the term of any
incumbent director.
(d) Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, any director may be removed from office at any time, but
only for cause and by the affirmative vote of the holders of at least 66 2/3% of the voting power
of the then outstanding Voting Stock, voting as a single class.
Seventh:
(a) Subject to the rights of the holders of any class or series of Preferred Stock, any action
required or permitted to be taken by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of the stockholders of the Corporation and may not be effected by
any consent in writing in lieu of a meeting of the stockholders of the Corporation.
(b) Advance notice of stockholder nominations for the election of directors and of business to
be brought by stockholders before any meeting of stockholders of the Corporation shall be given in
the manner prescribed in the By-Laws. At any annual meeting or special meeting of stockholders of
the Corporation, only such business shall be conducted as shall have been brought before such
meeting in the manner prescribed in the By-Laws.
(c) Unless otherwise prescribed by law or this Certificate of Incorporation, special meetings
of stockholders of the Corporation may be called at any by (i) the Chairman of the Board of
Directors or secretary of the Corporation at the request in writing of stockholders holding at
least 25% of the voting power of the issued and outstanding common stock of the Corporation
entitled to vote generally for the election of directors or (ii) by the Board of Directors in its
discretion. Such a written request of stockholders shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting shall be limited to the purpose or
purposes set forth in the notice of the meeting.
Eighth: No director shall be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except (i) for liability under Section
174 of the General Corporation Law or (ii) for liability, subject to any and all other requirements
for liability, (a) for any breach of such directors duty of loyalty to the Corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law or (c) for any transaction from which such director derived an
improper personal benefit. Neither the amendment nor repeal of this Article EIGHTH shall adversely
affect any right or protection of any director of the Corporation existing hereunder with respect
to any act or omission occurring prior to such amendment or repeal. If the General Corporation Law
shall be amended to authorize corporate action further eliminating or limiting the liability of
directors, then each director of the Corporation, in addition to the
4
circumstances in which such director shall not be liable immediately prior to such amendment,
shall be exempt from and free of liability to the fullest extent permitted by the General
Corporation Law as so amended.
Ninth: Each person who is or was a director or officer of the Corporation shall be
indemnified by the Corporation to the fullest extent permitted from time to time by the General
Corporation Law as the same presently exists or may hereafter be amended (but, if permitted by
applicable law, in the case of any amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior to such amendment) or
any other applicable law as presently or hereafter in effect. The Corporation may, by action of
the Board of Directors, provide indemnification to employees and agents (in addition to directors
and officers) of the Corporation, to the directors, officers, employees or agents of any direct or
indirect subsidiary of the Corporation and to each person serving as a director, officer, partner,
member, employee or agent of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise, at the request of the Corporation, with the same scope and
effect as the foregoing indemnification of directors and officers of the Corporation. The
Corporation shall, be required to indemnify any person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors or is a proceeding to enforce such persons claim to
indemnification pursuant to rights granted in this Certificate of Incorporation or otherwise by the
Corporation. Without limiting the generality or effect of the foregoing, the Corporation may adopt
by-laws or enter into one or more agreements with any persons or persons which provide for
indemnification greater or different than that provided in this Article NINTH. Any amendment or
repeal of this Article NINTH shall not adversely affect any right or protection existing hereunder
in respect of any act or omission occurring prior to such amendment or repeal. The indemnification
provided for herein shall not be deemed exclusive of any other rights to which any person seeking
indemnification may be entitled, whether as a matter of law or otherwise, and shall inure to the
benefit of the heirs, executors and administrators of such person.
Tenth:
(a) Except as may be expressly provided in this Certificate of Incorporation, the Corporation
reserves the right at any time and from time to time to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation or in any Preferred Stock Designation, and
any other provisions authorized by the laws of the State of Delaware at the time in force may be
added hereto or inserted herein, in the manner now or hereafter prescribed herein or by applicable
law, and all rights, preferences and privileges of whatsoever nature conferred upon stockholders,
directors, officers or any other persons whomsoever by and pursuant to this Certificate of
Incorporation in its present form or as hereafter amended are granted subject to this reservation,
provided that any amendment or repeal of Article EIGHTH or Article NINTH of this Certificate of
Incorporation shall not adversely affect any right or protection existing thereunder in respect of
any act or omission occurring prior to such amendment or repeal, and provided further that no
Preferred Stock Designation shall be
5
amended after issuance of any shares of any series of Preferred Stock created thereby, except
in accordance with the terms of such Preferred Stock Designation and the requirements of applicable
law.
(b) For purposes of this Certificate of Incorporation, Voting Stock means the outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of directors.
Notwithstanding anything contained in this Certificate of Incorporation to the contrary, and in
addition to approval of the Board of Directors, the affirmative vote of the holders of at least
662/3% of the voting power of the then outstanding Voting Stock, voting together as a single class,
shall be required to amend, repeal or adopt any provision inconsistent with (i) paragraph (1) of
Article FIFTH, (ii) Article SIXTH, (iii) Article SEVENTH or (iv) paragraph (b) of this Article
TENTH.
Eleventh: The Corporation shall not issue any non-voting equity securities to the extent
prohibited by Section 1123 of Title 11 of the United States Code (the Bankruptcy Code), as in
effect on the effective date of the First Amended Prepackaged Plan of Reorganization of CIT Group
Inc. and CIT Group Funding Company of Delaware LLC.
Twelfth:
(a) Definitions. For purposes of this Article Twelfth, the following terms shall have the
following meanings:
Agent shall mean an agent designated by the Board of Directors of the Corporation.
Code shall mean the Internal Revenue Code of 1986, as amended from time to time.
Corporation Securities shall mean (i) shares of Common Stock, (ii) shares of Preferred Stock
(other than preferred stock described in Section 1504(a)(4) of the Code), (iii) warrants, rights,
or options (within the meaning of Treasury Regulation Section 1.382-4(d)(9)) to purchase stock of
the Corporation (other than preferred stock described in Section 1504(a)(4) of the Code), and (iv)
any other interests that would be treated as stock of the Corporation pursuant to Treasury
Regulation Section 1.382-2T(f)(18), or any successor provision.
Effective Date shall mean the date of filing of this Third Amended and Restated Certificate of
Incorporation.
Excess Securities shall mean the Corporation Securities which are the subject of the Prohibited
Transfer.
Five-Percent Shareholder shall mean (i) a Person or group of Persons that is identified as a
5-percent shareholder of the Corporation pursuant to Treasury Regulation Section 1.382-2T(g) or
(ii) a Person that is a first tier entity or higher tier entity (as such terms are defined in
Section 1.382-2T(f) of the Treasury Regulations) of the Corporation if that Person has a public
group or individual, or a higher tier entity of that Person
6
has a public group or individual, that is treated as a 5-percent shareholder of the Corporation
pursuant to Section 1.382-2T(g) of the Treasury Regulations.
Percentage Stock Ownership shall mean the percentage stock ownership interest as determined in
accordance with Treasury Regulation Sections 1.382-2(a)(3), 1.382-2T(g), (h), (j) and (k),
1.382-3(a), and 1.382-4(d); provided, however, that for the sole purpose of determining the
percentage stock ownership of any entity (and not for the purpose of determining the percentage
stock ownership of any other Person), Company Securities held by such entity shall not be treated
as no longer owned by such entity pursuant to Treasury Regulation Section 1.382-2T(h)(2)(i)(A).
Person shall mean any individual, firm, corporation, partnership, limited liability company,
limited liability partnership, trust, syndicate, estate, association, joint venture or similar
organization, other entity, or group of persons making a coordinated acquisition of Company
Securities or otherwise treated as an entity within the meaning of Treasury Regulation Section
1.382-3(a)(1) or otherwise, and includes, without limitation, an unincorporated group of persons
who, by formal or informal agreement or arrangement (whether or not in writing), have embarked on a
common purpose or act, and also includes any successor (by merger or otherwise) of any such
individual or entity.
Plan shall mean the Modified Second Amended Prepackaged Plan of Reorganization of CIT Group Inc.
and CIT Group Funding Company of Delaware LLC, dated December 7, 2009.
Prohibited Distributions shall mean any dividends or other distributions that were paid by the
Corporation and received by a Purported Transferee with respect to the Excess Securities.
Prohibited Transfer shall mean any purported Transfer of Corporation Securities to the extent
that such Transfer is prohibited and/or void under this Article Twelfth.
Purported Transferee shall mean the purported transferee of a Prohibited Transfer.
Restriction Release Date shall mean the earliest of (i) the repeal of Section 382 of the Code
(and any comparable successor provision) or (ii) the earlier of (A) the day that is forty-five (45)
days after the second anniversary of the Effective Date pursuant to the Plan and (B) the earliest
date on which the Board of Directors determines that (1) the consummation of the Plan did not
satisfy the requirements of Section 382(1)(5) of the Cod or treatment under Section 382(1)(5) of
the Code is not in the best interests of the Corporation, its affiliates and its shareholders,
taking into account all relevant facts and circumstances, including, without limitation, the market
and other impact of maintaining these Transfer restrictions herein, (2) an ownership change (within
the meaning of Section 382 of the Code) would not result in a substantial limitation on the ability
of the Corporation (or a direct or indirect subsidiary of the Corporation) to use otherwise
7
available Tax Benefits, or (3) no significant value attributable to the Tax Benefits would be
preserved by continuing the Transfer restrictions herein.
Tax Benefits shall mean the net operating loss carryovers, capital loss carryovers, general
business credit carryovers, alternative minimum tax credit carryovers and foreign tax credit
carryovers, as well as any net unrealized built-in loss within the meaning of Section 382 of the
Code, of the Corporation or any direct or indirect subsidiary thereof.
Transfer shall mean, subject to the last sentence of this definition, any direct or indirect
sale, transfer, assignment, conveyance, pledge, or other disposition. A Transfer also shall include
the creation or grant of an option (within the meaning of Treasury Regulation Section 1.382-4(d)(9)) other than the grant of an option by the Corporation or the modification, amendment
or adjustment of an existing option granted by the Corporation. A Transfer shall not include an
issuance or grant of Corporation Securities by the Corporation, the modification, amendment or
adjustment of an existing option by the Corporation and the exercise by an employee of the
Corporation of any option to purchase Corporation Securities granted to such employee pursuant to
contract or any stock option plan or other equity compensation plan of the Corporation.
Treasury Regulation shall mean the income tax regulations (whether temporary, proposed or final)
promulgated under the Code and any successor regulations. References to any subsection of such
regulations include references to any successor subsection thereof.
(b) Restrictions on Transfer. In order to preserve the Tax Benefits, subject to Section (c)
of this Article Twelfth, any attempted Transfer of Corporation Securities prior to the Restriction
Release Date, or any attempted Transfer of Corporation Securities pursuant to an agreement entered
into prior to the Restriction Release Date, shall be prohibited and void ab initio to the extent
that, as a result of such Transfer (or any series of Transfers of which such Transfer is a part),
either (i) any Person or group of Persons shall become a Five-Percent Shareholder or (ii) the
Percentage Stock Ownership interest in the Corporation of any Five-Percent Shareholder shall be
increased. Notwithstanding the foregoing, nothing in this Article Twelfth shall prevent a Person
from Transferring Corporation Securities to a new or existing public group of the Corporation, as
defined in Treasury Regulation Section 1.382-2T(f)(13) or any successor regulation.
(c) Certain Exceptions.
(i) The restrictions set forth in Section 12(b) of this Article Twelfth shall not apply to an
attempted Transfer of Corporation Securities if the transferor or the transferee obtains the
written approval of the Board of Directors of the Corporation, which approval may be granted or
denied in accordance with the procedures set forth in this Section 12(c) of Article Twelfth. In
connection therewith, and to provide for effective policing of such restrictions, prior to the date
of any proposed Transfer of Corporation Securities that, in the absence of the approval of the
Board of Directors pursuant to this Section
12(c) of Article Twelfth, would be a Prohibited
Transfer, either (a) the proposed transferee of
8
such Corporation Securities (a Restricted Transferee) or (b) the proposed transferor of such
Corporation Securities (a Restricted Transferor) shall request in writing (a Request) that a
committee of not fewer than one director but not more than three directors appointed by the Board
of Directors (the Review Committee), or the Board of Directors if the Review Committee deems
review by the Board of Directors to be appropriate, review the proposed Transfer of Corporation
Securities and authorize or not authorize such proposed Transfer in accordance with this Section
12(c) of Article Twelfth.
(ii) A Request shall be mailed or delivered to the Secretary of the Corporation at the
Corporations principal place of business, or telecopied to the Corporations telecopier number at
its principal place of business. Such Request shall be deemed to have been received by the
Corporation when actually received by the Corporation.
(iii) A Request shall include: (A) the name, address and telephone number of the Restricted
Transferee; (B) a description of the Restricted Transferees existing direct or indirect ownership
of Corporation Securities; (C) a description of the Corporation Securities that are proposed to be
Transferred to the Restricted Transferee; (D) the date on which such proposed Transfer is expected
to take place (or, if such Transfer is proposed to be made in a transaction on a national
securities exchange or any national securities quotation system, a statement to that effect); (E)
the name, address and telephone number of the Restricted Transferor (or, if such Transfer is
proposed to be made in a transaction on a national securities exchange or any national securities
quotation system, a statement to that effect); and (F) a request that the Review Committee, or the
Board of Directors if the Review Committee deems review by the Board of Directors to be
appropriate, Board authorize, if appropriate, such Transfer pursuant to this Section 12(c) of
Article Twelfth.
(iv) The Review Committee shall use reasonable best efforts to make a determination to
authorize, deny or refer to the Board of Directors any Request on or before the tenth business day
(or, if necessary to permit the Restricted Transferee and/or Restricted Transferor to provide the
information requested pursuant to this Section 12(c) of Article Twelfth, such later date as
reasonably determined by the Review Committee in consultation with the Restricted Transferor or
Restricted Transferee that made such Request) following receipt of the Request by the Corporation.
In the event the Review Committee refers the Request to the Board of Directors, the Board of
Directors shall use reasonable best efforts to consider the applicable Request on or before the
tenth business day following the Review Committees referral of the Request to the Board of
Directors.
(v) The Review Committee (or the Board of Directors) may authorize a Transfer of Corporation
Securities to a Restricted Transferee, if it determines, in its sole discretion, that, after taking
into account the preservation of the Tax Benefits, such Transfer of Corporation Securities would be
in the best interests of the Corporation and its stockholders. The Review Committee (or the Board
of Directors) may only determine not to authorize a Transfer of Corporation Securities to a
Restricted Transferee, if it determines, in good faith and its sole discretion, that such Transfer
meaningfully
9
increases the risk of a limitation on the use of the Tax Benefits under Section 382 of the Code.
For purposes of this determination, the Board of Directors shall consider, among other items, the
following: (i) the total owner shift under Section 382 of the Code, (ii) all other pending proposed
Transfer requests, (iii) whether the proposed Transfer is structured to minimize the resulting
owner shift, and (iv) any reasonably foreseeable events of which the Board of Directors has
knowledge that would constitute additional owner shifts. Any determination by the Review Committee
(or the Board of Directors) not to authorize a proposed Transfer of Corporation Securities to a
Restricted Transferee shall cause such proposed Transfer to be deemed a Prohibited Transfer. The
Review Committee (or the Board of Directors) may impose any conditions that it deems reasonable and
appropriate in connection with such approval, including, without limitation, restrictions on the
ability of any Restricted Transferee to Transfer Corporation Securities acquired through a
Transfer. Approvals of the Review Committee (or the Board of Directors) hereunder may be given
prospectively or retroactively. The Review Committee (or the Board of Directors), to the fullest
extent permitted by law, may exercise the authority granted by this Section 12(c) of Article
Twelfth through duly authorized officers or agents of the Corporation. Nothing in this
Section 12(c) of Article Twelfth shall be construed to limit or restrict the Review Committee (or
the Board of Directors) in the exercise of its fiduciary duties under applicable law.
(vi) In addition, the Review Committee (or the Board of Directors) may, in its sole
discretion, require (A) such representations from the Restricted Transferee and/or Restricted
Transferor as to such matters as the Review Committee (or the Board of Directors) may determine or
(B) at the expense of the Restricted Transferor and/or Restricted Transferee, an opinion of counsel
selected by the Review Committee (or the Board of Directors) that the Transfer will not result in
the application of any Section 382 limitation on the use of the Tax Benefits; provided that the
Board of Directors may grant such approval notwithstanding the effect of such approval on the Tax
Benefits if it determines that the approval is in the best interests of the Corporation. Any
Restricted Transferee and/or Restricted Transferor who makes a Request to the Review Committee
shall reimburse the Corporation, on demand, for all costs and expenses incurred by the Corporation
with respect to any proposed Transfer of Corporation Securities, including, without limitation, the
Corporations costs and expenses incurred in determining whether to authorize the proposed
Transfer, which costs may include, but are not limited to, any expenses of counsel and/or tax
advisors engaged by the Review Committee (or the Board of Directors) to advise the Review Committee
(or the Board of Directors) or deliver an opinion thereto.
(vii) The Corporation shall promptly notify the Restricted Transferee and the Restricted
Transferor of (i) the Review Committees determination to authorize, deny or refer to the Board of
Directors any Transfer to a Restricted Transferee and (ii) the Board of Directors determination to
authorize or deny the Transfer described in the Request.
(viii) If the Review Committee (or the Board of Directors) authorizes the Transfer of
Corporation Securities, the Restricted Transferee and Restricted Transferor shall be permitted to
consummate such Transfer described in the Request.
10
(d) Treatment of Excess Securities.
(i) No officer, director, employee or agent of the Corporation shall record any Prohibited
Transfer, and a Purported Transferee shall not be recognized as a stockholder of the Corporation
for any purpose whatsoever in respect of Excess Securities. Until the Excess Securities are
acquired by another Person in a Transfer that is not a Prohibited Transfer, the Purported
Transferee shall not be entitled with respect to such Excess Securities to any rights of
stockholders of the Corporation, including, without limitation, the right to vote such Excess
Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect
thereof, if any, and the Excess Securities shall be deemed to remain with the transferor unless and
until the Excess Securities are transferred to the Agent pursuant to Section 12(d)(iii) or until
approval is obtained under Section (c) of this Article Twelfth. Once the Excess Securities have
been acquired in a Transfer that is not a Prohibited Transfer, the Securities shall cease to be
Excess Securities. For this purpose, any Transfer of Excess Securities not in accordance with the
provision of this Section 12(d)(i) or Section 12(d)(iii) shall also be a Prohibited Transfer.
(ii) The Corporation may require as a condition to the registration of the Transfer of any
Corporation Securities or the payment of any distribution on any Corporation Securities that the
proposed transferee or payee furnish the Corporation all information reasonably requested by the
Corporation with respect to all the direct and indirect ownership interests in such Corporation
Securities. The Corporation may make such arrangements or issue such instructions to its stock
transfer agent as may be determined by the Board of Directors to be necessary or advisable to
implement Article Twelfth, including, without limitation, authorizing such transfer agent to
require an affidavit from a Purported Transferee regarding such Persons actual and constructive
ownership of Corporation Securities and other evidence that a Transfer will not be prohibited by
Section (b) of this Article Twelfth as a condition to registering any Transfer.
(iii) If the Board of Directors determines that a Transfer of Corporation Securities
constitutes a Prohibited Transfer then, upon written demand by the Corporation, the Purported
Transferee shall transfer or cause to be transferred any certificate or other evidence of ownership
of the Excess Securities within the Purported Transferees possession or control, together with
Prohibited Distributions, to the Agent. The Agent shall thereupon sell to a buyer or buyers, which
may include the Corporation, the Excess Securities transferred to it in one or more arms-length
transactions (on the public securities market on which the Corporation Securities may be traded, if
possible, or otherwise privately); provided, however, that any such sale must not constitute a
Prohibited Transfer and provided, further, that the Agent shall effect such sale or sales in an
orderly fashion and shall not be required to effect any such sale within any specific time frame
if, in the Agents discretion, such sale or sales would disrupt the market for the Corporation
Securities or otherwise would adversely affect the value of the Corporation Securities. If the
Purported Transferee has resold the Excess Securities
11
before receiving the Corporations demand to surrender the Excess Securities to the Agent, the
Purported Transferee shall be deemed to have sold the Excess Securities for the Agent, and shall be
required to transfer to the Agent any Prohibited Distributions and proceeds of such sale, except to
the extent that the Corporation grants written permission to the Purported Transferee to retain a
portion of such sales proceeds not exceeding the amount that the Purported Transferee would have
received from the Agent pursuant to Section 12(d)(iv) of this Article Twelfth if the Agent rather
than the Purported Transferee had resold the Excess Securities.
(iv) The Agent shall apply any proceeds of a sale by it of Excess Securities, and if the
Purported Transferee had previously resold the Excess Securities, any amounts received by the Agent
from a Purported Transferee, as follows: (A) first, such amounts shall be paid to the Agent to the
extent necessary to cover its costs and expenses incurred in connection with its duties hereunder;
(B) second, any remaining amounts shall be paid to the Purported Transferee, up to the amount paid
by the Purported Transferee for the Excess Securities (or their fair market value at the time of
the Transfer, in the event the purported Transfer of the Excess Securities was, in whole or in
part, a gift, inheritance, or similar Transfer) which amount shall be determined at the discretion
of the Board of Directors; and (C) third, any remaining amounts, subject to the limitations imposed
by the following proviso, shall be paid to one or more organizations qualifying under Section
501(c)(3) of the Code (or any comparable or successor provision) selected by the Board of
Directors. The Purported Transferees sole right with respect to such Corporation Securities shall
be limited to the amount payable to the Purported Transferee pursuant to this Section 12(d)(iv).
In no event shall the proceeds of any sale of Excess Securities pursuant to this Article Twelfth
inure to the benefit of the Corporation.
(v) In the event of any Transfer which does not involve a transfer of securities of the
Corporation within the meaning of Delaware law (Securities, and individually, a Security) but
which would cause a Five-Percent Shareholder to violate a restriction on Transfers provided for in
this Article Twelfth, the application of Section 12(d)(iii) and Section 12(d)(iv) shall be modified
as described in this Section 12(d)(v). In such case, no such Five-Percent Shareholder shall be
required to dispose of any interest that is not a Security, but such Five Percent Shareholder
and/or any Person whose ownership of Securities is attributed to such Five Percent Shareholder
shall be deemed to have disposed of and shall be required to dispose of sufficient Securities
(which Securities shall be disposed of in the inverse order in which they were acquired) to cause
such Five-Percent Shareholder, following such disposition, not to be in violation of this Article
Twelfth. Such disposition shall be deemed to occur simultaneously with the Transfer giving rise to
the application of this provision, and such number of Securities that are deemed to be disposed of
shall be considered Excess Securities and shall be disposed of through the Agent as provided in
Sections 12(d)(iii) and 12(d)(iv), except that the maximum aggregate amount payable either to such
Five-Percent Shareholder, or to such other Person that was the direct holder of such Excess
Securities, in connection with such sale shall be the fair market value of such Excess Securities
at the time of the purported Transfer. All expenses incurred by the Agent in disposing of such
Excess
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Securities shall be paid out of any amounts due such Five-Percent Shareholder or such other Person.
The purpose of this Section 12(d)(v) is to extend the restrictions in Sections 12(b) and 12(d)(iii)
to situations in which there is a Prohibited Transfer without a direct Transfer of Securities, and
this Section 12(d)(v), along with the other provisions of this Article Twelfth, shall be
interpreted to produce the same results, with differences as the context requires, as a direct
Transfer of Corporation Securities.
(e) Board Determinations.
(i) The Board of Directors of the Corporation shall have the power to determine all matters
necessary for determining compliance with this Article Twelfth, including, without limitation: (A)
the identification of Five-Percent Shareholders; (B) whether a Transfer is a Prohibited Transfer;
(C) the Percentage Stock Ownership in the Corporation of any Five-Percent Shareholder; (D) whether
an instrument constitutes a Corporation Security; (E) the amount (or fair market value) due to a
Purported Transferee pursuant to clause (ii) of Section 12(d)(iv) of this Article Twelfth; (F)
whether compliance with any restriction or limitation on stock ownership and transfers set forth in
this Article Twelfth is no longer required; and (G) any other matters which the Board of Directors
determines to be relevant; and the determination of the Board of Directors on such matters shall be
conclusive and binding for all the purposes of this Article Twelfth.
(ii) Nothing contained in this Article Twelfth shall limit the authority of the Board of
Directors to take such other action to the extent permitted by law as it deems necessary or
advisable to protect the Corporation and its stockholders in preserving the Tax Benefits. Without
limiting the generality of the foregoing, in the event of a change in law making one or more of the
following actions necessary or desirable, the Board of Directors may, subject to Section 242(b) of
the General Corporation Law, by adopting a written resolution, (A) modify the ownership interest
percentage in the Corporation or the Persons or groups covered by this Article Twelfth, provided
that, such ownership interest percentages may only be modified to the extent necessary to reflect
changes to Section 382 and the applicable Treasury Regulations (B) modify the definitions of any
terms set forth in this Article Twelfth, or (C) modify the terms of this Article Twelfth as
appropriate, in each case, in order to prevent an ownership change for purposes of Section 382 of
the Code as a result of any changes in applicable Treasury Regulations or otherwise; provided,
however, that the Board of Directors shall not cause there to be such modification unless it
determines, by adopting a written resolution, that such action is reasonably necessary or advisable
to preserve the Tax Benefits or that the continuation of these restrictions is no longer reasonably
necessary for the preservation of the Tax Benefits. Stockholders of the Corporation shall be
notified of such determination through a filing with the Securities and Exchange Commission or such
other method of notice as the Secretary of the Corporation shall deem appropriate; provided,
further, notwithstanding the first sentence of this Section 12(e)(ii) of Article Twelfth, the
Corporation shall not be entitled modify the terms of this Article Twelfth in order to accelerate
or extend the Restriction Release Date.
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(iii) In the case of an ambiguity in the application of any of the provisions of this Article
Twelfth, including any definition used herein, the Board of Directors shall have the power to
determine the application of such provisions with respect to any situation based on its reasonable
belief, understanding or knowledge of the circumstances. In the event this Article Twelfth requires
an action by the Board of Directors but fails to provide specific guidance with respect to such
action, the Board of Directors shall have the power to determine the action to be taken so long as
such action is not contrary to the provisions of this Article Twelfth. All such actions,
calculations, interpretations and determinations which are done or made by the Board of Directors
in good faith shall be conclusive and binding on the Corporation, the Agent, and all other parties
for all other purposes of this Article Twelfth. The Board of Directors may delegate all or any
portion of its duties and powers under this Article Twelfth to a committee of the Board of
Directors as it deems necessary or advisable and, to the fullest extent permitted by law, may
exercise the authority granted by this Article Twelfth through duly authorized officers or agents
of the Corporation. Nothing in this Article Twelfth shall be construed to limit or restrict the
Board of Directors in the exercise of its fiduciary duties under applicable law.
(f) Securities Exchange Transactions. Nothing in this Article Twelfth (including, without
limitation, any determinations made, or actions taken, by the Board of Directors pursuant to
Section 12(3)) shall preclude the settlement of any transaction entered into through the facilities
of a national securities exchange or any national securities quotation system. The fact that the
settlement of any transaction occurs shall not negate the effect of any other provision of this
Article Twelfth and any Purported Transferee in such a transaction shall be subject to all of the
provisions and limitations set forth in this Article Twelfth.
(g) Legal Proceedings; Prompt Enforcement. If the Purported Transferee fails to surrender the
Excess Securities or the proceeds of a sale thereof to the Agent within thirty days from the date
on which the Corporation makes a written demand pursuant to Section 7.4(c), then the Corporation
shall promptly take all cost effective actions which it believes are appropriate to enforce the
provisions hereof, including the institution of legal proceedings to compel the surrender. Nothing
in this Section 7.7 shall (a) be deemed inconsistent with any Transfer of the Excess Securities
provided in this Article Twelfth being void ab initio or (b) preclude the Corporation in its
discretion from immediately bringing legal proceedings without a prior demand. The Board of
Directors may authorize such additional actions as it deems advisable to give effect to the
provisions of this Article Twelfth.
(h) Liability. To the fullest extent permitted by law, any stockholder subject to the
provisions of this Article Twelfth who knowingly violates the provisions of this Article Twelfth
and any Persons controlling, controlled by or under common control with such stockholder shall be
jointly and severally liable to the Corporation for, and shall indemnify and hold the Corporation
harmless against, any and all damages suffered as a result of such violation, including but not
limited to damages resulting from a reduction
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in, or elimination of, the Corporations ability to utilize its Tax Benefits, and attorneys and
auditors fees incurred in connection with such violation.
(i) Notice to Corporation. Any Person who acquires or attempts to acquire Corporation
Securities in excess of the limitations set forth in this Article Twelfth shall immediately give
written notice to the Corporation of such event and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if any, of such
Prohibited Transfer on the preservation and usage of the Tax Benefits. As a condition to the
registration of the Transfer of any Corporation Securities, any Person who is a beneficial, legal,
or record holder of Corporation Securities, and any proposed transferee and any Person controlling,
controlled by, or under common control with the proposed transferee, shall provide such information
as the Corporation may request from time to time in order to determine compliance with this Article
Twelfth or the status of the Tax Benefits of the Corporation.
(j) Bylaws. The Bylaws may make appropriate provisions to effectuate the requirements of this
Article Twelfth.
(k) Certificates. All certificates representing Corporation Securities on or after the
Effective Date shall, until the Restriction Release Date, bear a conspicuous legend in
substantially the following form:
THE TRANSFER OF SECURITIES REPRESENTED HEREBY IS SUBJECT TO RESTRICTION PURSUANT TO ARTICLE SEVENTH
OF THE CERTIFICATE OF INCORPORATION OF CIT GROUP INC., AS AMENDED AND IN EFFECT FROM TIME TO TIME,
A COPY OF WHICH MAY BE OBTAINED FROM THE CORPORATION UPON REQUEST.
(l) Reliance. To the fullest extent permitted by law, the Corporation and the members of the
Board of Directors shall be fully protected in relying in good faith upon the information,
opinions, reports or statements of the chief executive officer, the chief financial officer, the
chief accounting officer or the corporate controller of the Corporation or of the Corporations
legal counsel, independent auditors, transfer agent, investment bankers or other employees and
agents in making the determinations and findings contemplated by this Article Twelfth, and the
members of the Board of Directors shall not be responsible for any good faith errors made in
connection therewith. For purposes of determining the existence and identity of, and the amount of
any Corporation Securities owned by any stockholder, the Corporation is entitled to rely on the
existence and absence of filings of Schedule 13D or 13G under the Securities and Exchange Act of
1934, as amended (or similar filings), as of any date, subject to its actual knowledge of the
ownership of Corporation Securities.
(m) Benefits of Article Twelfth. Nothing in this Article Twelfth shall be construed to give
to any Person other than the Corporation or the Agent any legal or equitable right, remedy or claim
under this Article Twelfth. This Article Twelfth shall be for the sole and exclusive benefit of
the Corporation and the Agent.
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(n) Severability. The purpose of this Article Twelfth is to facilitate the Corporations
ability to maintain or preserve its Tax Benefits. If any provision of this Article Twelfth or the
application of any such provision to any Person or under any circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision of this Article Twelfth.
(o) Waiver. With regard to any power, remedy or right provided herein or otherwise available
to the Corporation or the Agent under this Article Twelfth, (i) no waiver will be effective unless
expressly contained in a writing signed by the waiving party; and (ii) no alteration, modification
or impairment will be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by Eric S. Mandelbaum,
its Assistant Secretary, this 8th day of December, 2009.
CIT Group Inc.
By:
/s/ Eric S. Mandelbaum
|
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Title: Assistant Secretary |
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