Exhibit 3.3
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:00 AM 07/02/2002
02427886 - 3367172
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
TYCO CAPITAL HOLDING, INC.
AND
CIT GROUP INC. (DEL)
Tyco Capital Holding, Inc., a corporation organized and existing under the
laws of the State of Nevada (the "corporation"),
DOES HEREBY CERTIFY;
FIRST: That it was organized pursuant to the provisions of the General
Corporation Law of the State of Nevada, on the 13th day of October, 2000.
SECOND: That it owns all of the outstanding shares of the capital stock of
CIT Group Inc. (Del), a corporation organized pursuant to the provisions of the
General Corporation Law of the to the provisions of the State of Delaware on the
12th day of March, 2001 ("CIT Group").
FOURTH: That its Board of Directors, by unanimous written consent dated
June 27, 2002, determined to merge the corporation into CIT Group, and adopted
the resolutions attached hereto as Annex 1.
FIFTH: The Certificate of Incorporation of CIT Group is to be amended and
changed by merger herein certified by striking out Article FIRST thereof,
relating to its name, and substituting in lieu thereof the following article:
"FIRST: The name of the corporation is CIT Group Inc. (the
"Corporation")."
and said Certificate of Incorporation as so amended and changed shall continue
to be the Certificate of Incorporation of CIT Group until further amended and
changed in accordance with the General Corporation Law of the State of
Delaware.
S1XTH: The merger herein certified shall be effective upon the filing of
this certificate of ownership and merger.
(one signature page follows)
Signed on June 27, 2002.
TYCO CAPITAL HOLDING, INC.
Scott Stevenson
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Name: Scott Stevenson
Title: Vice President and
Assistant Treasurer
CIT GROUP INC. (DEL)
Eric Mendelbaum
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Name: Eric Mendelbaum
Title: Vice President
Annex I
WHEREAS: The Company desires to change its state of incorporation from Nevada
to Delaware: and
WHEREAS: The Company owns all of the issued and outstanding shares or the
capital stock of CIT Group Inc. (Del), a Delaware corporation
("Delaware Subsidiary"); and
WHEREAS: The Company intends to enter into an agreement and plan of merger (in
substantially the form attached hereto as Exhibit A, the "Delaware
Agreement and Plan of Merger) by and between the Company and Delaware
Subsidiary pursuant to which the Company will merge with and into
Delaware Subsidiary. with Delaware Subsidiary being the surviving
corporation (the Delaware Merger"); and
WHEREAS: The Company and Delaware Subsidiary intend (i) that the Delaware
Merger shall constitute a `reorganization' within the meaning of
Section 368(a)(1)(F) of the lnternal Revenue Code of 1986, as amended
and the regulations promulgated thereunder (the "Code), (ii) by
approving resolutions authorizing this Delaware Agreement and Plan of
Merger, to adopt this Delaware Agreement and Plan of Merger as a plan
of reorganization within the meaning of Sections 354 and 368 of the
Code and (iii) that the transactions contemplated by this Delaware
Agreement and Plan of Merger be undertaken pursuant to such plan; and
WHEREAS: The Board of Directors has reviewed the terms and conditions of the
Delaware Agreement and Plan of Merger and believes that the Delaware
Agreement and Plan of Merger and the Delaware Merger occurring
pursuant to the terms thereof are in the best interests of the
Company. Delaware Subsidiary, and the Company's shareholders.
NOW, THEREFORE, BE IT
RESOLVED: That the Company is hereby authorized to enter into the Delaware
Agreement and Plan of Merger with Delaware Subsidiary and to engage in
the Delaware Merger pursuant to the terms and conditions thereof; and
it is further
RESOLVED: That the Company as the sole shareholder of Delaware Subsidiary,
hereby authorizes Delaware Subsidiary to enter into the Delaware
Agreement and Plan of Merger and to engage in the Delaware Merger
pursuant to the terms and conditions thereof: and it is further
RESOLVED: That the Delaware Agreement and Plan of Merger is hereby approved and
adopted in accordance with Sections 92A.I00 92A.120, 92A.l80, and
92A.190 of the Nevada General Corporation Law and Section 253 of the
Delaware General Corporation Law; and it is further
RESOLVED: That the Delaware Agreement and Plan of Merger is hereby approved and
adopted as a plan of reorganization within the meaning of Sections
354 and 368 of the Code; and it is further
RESOLVED: That the Board hereby recommends that the sole stockholder of the
Company approve the Delaware Agreement and Plan of Merger; and it is
further
RESOLVED: That any officer of the Company, acting singly be, and each of them
hereby is, authorized and empowered on behalf of the Company to
execute and to deliver when so executed, the Agreement and Plan of
Merger, as well as any other instruments or documents necessary to
accomplish the Merger referred to in the foregoing resolutions, each
in such form as such officer executing the same shall by his execution
thereof approve; and it is further
RESOLVED: That any approval or other determination by any officer required or
permitted by the foregoing resolution, as a condition to the execution
or delivery of any documents, instruments or agreements or the taking
of any such other action shall be conclusively, but not exclusively
evidenced by the signature of such officer on such documents,
instruments or agreements or the participation of such officer in such
delivery or in the taking of such other action, and, further, that any
and all such action heretofore taken by any officer in carrying out
the purposes and intent of the foregoing resolutions mud the
transactions contemplated thereby be, and the same hereby are,
authorized approved, ratified and confirmed in all respects as the
acts and deeds of the Company; and it is further
RESOLVED: That these resolutions be filed with the records of the meetings of
the Board of Directors of the Company and that the action taken hereby
be treated for. all purposes as an action taken by vote of the Board
of Directors of the Company at a meeting of the Board of Directors
held for the purpose.
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
This AGREEMENT) PLAN OF MERGER (this "Agreement and Plan of Merger") is
dated as of June 27, 2002, by and between Tyco Capital Holding, Inc., a Nevada
corporation ("Parent") and CIT Group Inc. (Del), a Delaware corporation
("Subsidiary").
WHEREAS, Parent desires to become incorporated in the State of Delaware;
WHEREAS, Parent owns all of the issued and outstanding shares of the
capital stock of Subsidiary: and
WHEREAS, Subsidiary has not engaged in any business activities and has
only nominal assets and liabilities; and
WHEREAS, Parent desires to become a Delaware corporation by merging with
and into Subsidiary with Subsidiary continuing as the surviving corporation
solely for the purpose of changing Parent's state of incorporation; and
WHEREAS, pursuant to Parent's and Subsidiary's respective Articles of
incorporation and By-Laws, the Boards of Direotors of Parent end Subsidiary and
the shareholders of Parent have each approved and adopted this Agreement
providing for the merger (the "Merger") of Parent with and into Subsidiary in
accordance with the applicable provisions of the Nevada General Corporation Law
(the "NGCL") and the Delaware General Corporation Law ("DGCL") and upon the
terms and subject to the conditions set forth herein; and
WHEREAS, Parent and Subsidiary intend (i) that the Merger shall constitute
a "reorganization" within the meaning of Section 368(a)(1)(F) of the Internal
Revenue Code of 1986, as amended and the regulations promulgated thereunder (the
"Code"), (ii) by approving resolutions authorizing this Agreement, to adopt this
Agreement as a plan of reorganization within the meaning of Sections 354 and 368
of the Code and (iii) that the transactions by this Agreement be undertaken
pursuant to such plan: and
WHEREAS, pursuant to the Merger, each outstanding share of Parent's common
stock shall be converted into 2,000,000 shares of common stock of Subsidiary,
upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Parent and Subsidiary hereby agree as follows:
Section 1 - The Merger, At the Effective Time, and subject to and upon the
terms and conditions of this Agreement and the NGCL and the DGCL, Parent shall
be merged with and
into Subsidiary, the separate corporate existence of Parent shall cease, and
Subsidiary shall continue as he surviving corporation (hereinafter sometimes
referred to as the "Surviving Corporation")
Section 2. Effective Time. Unless this Agreement shall have been
terminated, the parties hereto shall cause the Merger to be consummated by (a)
filing articles of merger as contemplated by the NGCL (the "Articles of Merger")
and (b) filing a properly executed agreement or certificate of merger as
contemplated by the DGCL (the "Certificate of Merger"), each, together with any
required related certificates, with the Secretaries of State of the States of
Nevada and Delaware, as appropriate, in such forms as required by, and executed
in accordance with the relevant provisions of, the NGCL and the DGCL,
respectively. The Merger shall become effective at the time of the later to
occur of such filings or at such later times specified in the Articles of Merger
and Certificate of Merger (the "Effective Time").
Section 3. Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Articles of Merger, the
Certificate of Merger and the applicable provisions of the NGCL and the DGCLL.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time all the property, rights, privileges, powers and franchises of
Subsidiary and Parent shall vest in the Surviving Corporation, and all debts,
liabilities of Subsidiary and Parent shall become the debts, liabilities and
duties of the Surviving Corporation.
Section 4. Effect on Securities, Etc. At the Effective Time, by virtue of
the Merger and without any action on the part of Parent, Subsidiary or the
holders of any securities of Parent;
(a) Conversion of Securities. Each share of capital stock of Parent issued
and outstanding immediately prior to the Effective Time shall be converted into
2,000,000 shares of common stock of Subsidiary at the Effective Time.
Thereafter, certificates for shares of capital stock of Parent shall represent
solely the right to receive in exchange therefore (and upon surrender thereof)
shares of common stock of Subsidiary.
(b) Cancellation. Each share of common crock of Subsidiary held in the
treasury of Subsidiary or owned by Parent immediately prior to the Effective
Time shall, by Merger and without any action on the part of the bolder thereof,
cease to be outstanding, be canceled and retired without payment of any
consideration therefor and cease to exist.
Section 5 Articles of Incorporation, By-laws. (a) At the Effective time,
the Certificate of Incorporation of Subsidiary, as in effect immediately prior
to the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation (other than that the name of the Surviving Corporation
reflected In such Certificate of Incorporation shall be CIT Group Inc.) until
thereafter amended as provided by law and such Certificate of Incorporation of
the Surviving Corporation.
(b) At the Effective Time, the By-laws of Subsidiary, as in effect
immediately prior to The Effective Time, shall be the By-laws of the Surviving
Corporation until thereafter amended.
Section 6, Directors and Officers. The directors of Subsidiary immediately
prior to the Effective Time shall he the initial directors of the Surviving
Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation, and the officers of
Subsidiary immediately prior to the Effective Time shall be the initial officers
of the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
Section 7. Tax Consequences. The parties hereto intend that the Merger
shall constitute a reorganization within the meaning of Section 368(a)(1)(F) of
the Code. The parties hereto hereby adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
United States Treasury Regulations.
Section 8. Taking of Necessary Action: Further Action. Each of Parent and
Subsidiary will take, and cause their affiliates to take, all such reasonable
and lawful actions as may be necessary or appropriate in order to effectuate the
Merger and the other transactions contemplated by this Agreement in accordance
with this Agreement as promptly as possible. If, at any time the Effective Time,
any such further action is necessary or desirable to carry the purposes of this
Agreement and to vest the Surviving Corporation with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of
Subsidiary and Parent, the officers and directors of Subsidiary and Parent
immediately prior to the Effective Time are fully authorized in the name of
their respective corporations or otherwise to take, and will take, all such
lawful and necessary action.
Section 9. Termination of Merger. At any time after filing of the Articles
of Merger but prior to the Effective Time, Parent and Subsidiary may terminate
the Merger by mutual agreement and the filing of articles of termination in
accordance with the NGCL.