CIT GROUP INC.
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CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
6.350% NON-CUMULATIVE PREFERRED STOCK, SERIES A
(par value $0.01 per share)
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CIT GROUP INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), does hereby
certify that (i) pursuant to resolutions duly adopted by the board of directors
of the Corporation (the "Board of Directors"), pursuant to authority conferred
upon the Board of Directors by the provisions of the Certificate of
Incorporation of Corporation, as amended, which authorize the issuance of up to
100,000,000 shares of preferred stock, par value $0.01 per share, and (ii)
pursuant to authority conferred upon the Preferred Stock Committee of the Board
of Directors (the "Preferred Stock Committee") in accordance with Section 141(c)
of the General Corporation Law of the State of Delaware, by Article III (Section
3.10) of the By-Laws of the Corporation and by the resolutions of the Board of
Directors at a meeting of the Board of Directors duly held on July 19, 2005, the
following resolutions were duly adopted by the Preferred Stock Committee on July
26, 2005:
"RESOLVED, that the issue of a series of preferred stock, par value $0.01
per share, of the Corporation is hereby authorized and the designation,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, in addition to those set
forth in the Certificate of Incorporation of the Corporation, as amended, are
hereby fixed as follows:
6.350% NON-CUMULATIVE PREFERRED STOCK, SERIES A
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SECTION 1. DESIGNATION. The shares of such series shall be designated as
"6.350% Non-Cumulative Preferred Stock, Series A" (the "Series A Preferred
Stock").
SECTION 2. NUMBER OF SHARES. The authorized number of shares of Series A
Preferred Stock shall be 14,000,000 shares. Shares of Series A Preferred Stock
that are redeemed, purchased or otherwise acquired by the Corporation, or
converted into another series of Preferred Stock, shall be cancelled and shall
revert to authorized but unissued shares of Series A Preferred Stock.
SECTION 3. DEFINITIONS. As used herein with respect to Series A Preferred
Stock, unless otherwise defined herein:
(a) "Average Four Quarters Fixed Charge Ratio" means, as of any Quarter
End: (i) the sum, for each of the prior four Quarter Ends inclusive
of such Quarter End, of the quotient of (x) Adjusted Earnings Before
Interest and Taxes and (y) Fixed Charges divided by (ii) 4. For
purposes of this definition:
i. Adjusted Earnings Before Interest and Taxes means earnings,
as of any Quarter End, excluding (i) income taxes, (ii)
interest expense, (iii)
extraordinary items, (iv) goodwill impairment and (v)
amounts related to discontinued operations.
ii. Fixed Charges means, as of any Quarter End, the sum of (i)
interest expense and (ii) preferred dividends.
(b) "By-Laws" means the amended and restated bylaws of the Corporation,
as they may be amended from time to time.
(c) "Business Day" means a day other than (i) a Saturday or Sunday; (ii)
a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed; or (iii) a day
on which the Corporation's principal executive office is closed for
business.
(d) "Certificate of Designations" means the Certificate of Designations
relating to the Series A Preferred Stock, as it may be amended from
time to time.
(e) "Certification of Incorporation" shall mean the certificate of
incorporation of the Corporation, as it may be amended from time to
time, and shall include the Certificate of Designations.
(f) "Commission" means the Securities and Exchange Commission.
(g) "Common Stock" means the common stock, par value $0.01 per share, of
the Corporation.
(h) "Dividend Payment Date" has the meaning specified in Section
4(a)(i).
(i) "Dividend Period" has the meaning specified in Section 4(a)(iii).
(j) "Dividend Record Date" has the meaning specified in Section
4(a)(ii).
(k) "DTC" has the meaning specified in Section 5(b).
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(m) "Junior Stock" means the Common Stock and any other class or series
of stock of the Corporation that ranks junior to Series A Preferred
Stock either or both as to the payment of dividends (whether such
dividends are cumulative or non-cumulative) and/or as to the
distribution of assets on any liquidation, dissolution or winding up
of the Corporation.
(n) "Liquidating Preference" shall have the meaning set forth in Section
6(b).
(o) "New Common Equity Amount" means, at any date, the net proceeds
(after underwriters' or placement agents' fees, commissions or
discounts and other expenses relating to the issuances) received by
the Corporation from new issuances of shares of Common Stock
(whether in one or more public offerings
registered under the Securities Act or private placements or other
transactions exempt from registration under the Securities Act)
during the period commencing on the 90th day prior to such date, and
which are designated by the Board of Directors at or before the time
of issuance as being available to pay dividends on the Series A
Preferred Stock and other Parity Stock (including the Series B
Preferred Stock).
(p) "Nonpayment Event" shall have the meaning set forth in Section
8(b)(i).
(q) "Nonpayment Remedy" shall have the meaning set forth in Section
8(b)(iii).
(r) The term "outstanding," when used in respect of the Series A
Preferred Stock shall mean all authorized, issued and outstanding
shares of the Series A Preferred Stock, other than as provided in
Section 7(e), and shall not include shares of Series A Preferred
Stock that are redeemed, purchased or otherwise acquired by the
Corporation, or converted into another series of Preferred Stock,
pursuant to Section 2.
(s) "Parity Stock" means any other class or series of stock of the
Corporation that ranks equally with the Series A Preferred Stock
either or both as to the payment of dividends (whether such
dividends are cumulative or non-cumulative) and/or as to the
distribution of assets on any liquidation, dissolution or winding up
of the Corporation. Parity Stock includes the Series B Preferred
Stock.
(t) "Parity Stock Dividend Payment Date" means a dividend payment date
with respect to any Parity Stock having Dividend Payment Dates that
are different from the Dividend Payment Dates pertaining to the
Series A Preferred Stock but that falls within the related Dividend
Period for the Series A Preferred Stock.
(u) "Preferred Stock" means any and all series of preferred stock,
having a par value of $0.01 per share, of the Corporation, including
the Series A Preferred Stock and the Series B Preferred Stock.
(v) "Preferred Stock Director" shall have the meaning set forth in
Section 8(b).
(w) "Quarter End" means the last day of each fiscal quarter of the
Corporation (i.e., March 31, June 30, September 30 and December 31
of each calendar year).
(x) "Redemption Date" means the date fixed for the redemption of the
Series A Preferred Stock and set forth in a notice of redemption
delivered pursuant to Section 7(c).
(y) "Securities Act" means the Securities Act of 1933, as amended.
(z) "Series B Preferred Stock" means the Non-Cumulative Preferred Stock,
Series B, of the Corporation.
(aa) "Tangible Equity Amount" means, as of any Quarter End, the
Corporation's total stockholders' equity, as reflected on the
Corporation's consolidated balance sheet as of such Quarter End,
excluding (i) goodwill and (ii) other intangible assets.
(bb) "Total Managed Assets" means, as of any Quarter End, the total
balance sheet assets of the Corporation, plus securitized
receivables.
(cc) "Voting Preferred Stock" means any and all series of Preferred Stock
that rank equally with Series A Preferred Stock either or both as to
the payment of dividends and/or as to the distribution of assets
upon liquidation, dissolution or winding up of the Corporation and
upon which like voting rights have been conferred and are
exercisable, and includes the Series B Preferred Stock.
(dd) "U.S. GAAP" means, at any date or for any period, U.S. generally
accepted accounting principles as in effect on such date or for such
period.
SECTION 4. DIVIDENDS.
(a) RATE. (i) Holders of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors or a duly authorized
committee of the Board of Directors, in its sole discretion, out of funds
legally available for the payment of dividends under the Delaware General
Corporation Law and subject to the restrictions set forth in Section 5,
non-cumulative cash dividends at the annual rate of 6.350% applied to the
liquidation preference amount of $25.00 per share of Series A Preferred Stock.
Such dividends shall be payable quarterly in arrears, but only when, as and if
declared by the Board of Directors or a duly authorized committee of the Board
of Directors, on March 15, June 15, September 15 and December 15 of each year
(each, a "Dividend Payment Date"), commencing on September 15, 2005; provided
that if any such Dividend Payment Date would otherwise occur on a day that is
not a Business Day, such Dividend Payment Date shall instead be (and any
dividend payable on Series A Preferred Stock on such Dividend Payment Date shall
instead be payable on) the next succeeding Business Day with the same force and
effect as if made on the original Dividend Payment Date, and no additional
dividends shall accrue (if declared) or be on the amount so payable from such
date to such next succeeding Business Day. Dividends on the Series A Preferred
Stock shall not be cumulative.
(ii) Dividends that are payable on the Series A Preferred Stock on any
Dividend Payment Date will be payable to holders of record of Series A Preferred
Stock as they appear on the stock register of the Corporation on the applicable
record date, which shall be the 15th calendar day immediately preceding such
Dividend Payment Date or such other record date fixed by the Board of Directors
or a duly authorized committee of the Board of Directors that is not more than
60 calendar days nor less than 10 calendar days prior to such Dividend Payment
Date (each, a "Dividend Record Date"). Any such day that is a Dividend Record
Date shall be a Dividend Record Date whether or not such day is a Business Day.
(iii) A dividend period (a "Dividend Period") is the period from and
including a Dividend Payment Date (other than the initial Dividend Period, which
shall commence on and include the date of original issue of the Series A
Preferred Stock, provided that, for any share of
Series A Preferred Stock issued after such original issue date, the initial
Dividend Period for such shares may commence on and include such other date as
the Board of Directors or a duly authorized committee of the Board of Directors
shall determine and publicly disclose) to but excluding the next Dividend
Payment Date (whether or not dividends have been paid on the prior Dividend
Payment Date). Dividends payable on the Series A Preferred Stock in respect of
any Dividend Period shall be computed on the basis of a 360-day year consisting
of twelve 30-day months. Dividends payable in respect of a Dividend Period shall
be payable in arrears (i.e., on the first Dividend Payment Date after such
Dividend Period).
(iv) Holders of Series A Preferred Stock shall not be entitled to receive
any dividends not declared by the Board of Directors or a duly authorized
committee of the Board of Directors, and no interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend not so declared. If the
Board of Directors, or a duly authorized committee of the Board of Directors,
does not declare a dividend on the Series A Preferred Stock to be payable in
respect of any Dividend Period (defined below) before the related Dividend
Payment Date, such dividend will not accrue and the Corporation will have no
obligation to pay a dividend for that Dividend Period on the Dividend Payment
Date or at any future time, whether or not dividends on the Series A Preferred
Stock are declared for any future Dividend Period. Holders of Series A Preferred
Stock shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and payable
on the Series A Preferred Stock as specified in this Section 4.
(b) PRIORITY OF DIVIDENDS. So long as any shares of Series A Preferred
Stock remain outstanding for any Dividend Period, unless the full dividends for
the most recent Dividend Payment Date on all outstanding shares of Series A
Preferred Stock and Parity Stock have been paid or declared and a sum sufficient
for the payment thereof has been set aside for future payment:
(i) no dividend shall be declared or paid on the Common Stock
or any other shares of Junior Stock (other than a dividend payable solely
in Junior Stock); and
(ii) no Common Stock or other Junior Stock shall be purchased,
redeemed or otherwise acquired for consideration by the Corporation,
directly or indirectly (other than (1) as a result of a reclassification
of Junior Stock for or into other Junior Stock or the exchange or
conversion of one share of Junior Stock for or into another share of
Junior Stock; (2) repurchases in support of the Corporation's employee
benefit and compensation programs; (3) repurchases pursuant to the
Corporation's accelerated stock buyback program approved by the Board of
Directors on July 19, 2005; and (4) through the use of the proceeds of a
substantially contemporaneous sale of Junior Stock).
When dividends are declared by the Board of Directors, or a duly
authorized committee of the Board of Directors, in its sole discretion, and are
not paid in full or duly provided for in full on any Dividend Payment Date (or
the Parity Stock Dividend Payment Date, as the case may be) upon the Series A
Preferred Stock and any shares of Parity Stock, all dividends declared on the
Series A Preferred Stock and all such Parity Stock and payable on such Dividend
Payment Date (or the Parity Stock Dividend Payment Date, as the case may be)
shall be declared pro rata so that the respective amounts of such dividends
shall bear the same ratio to each other as all
accrued but unpaid dividends per share on the Series A Preferred Stock and all
Parity Stock payable on such Dividend Payment Date (or the Parity Stock Dividend
Payment Date, as the case may be) bear to each other.
SECTION 5. MANDATORY SUSPENSION OF DIVIDENDS.
(a) TESTS FOR SUSPENSION. (i) Notwithstanding Section 4, in addition to
any applicable restrictions under the General Corporation Law of the State of
Delaware, neither the Board of Directors nor any committee of the Board of
Directors may declare dividends on the Series A Preferred Stock for payment on
any Dividend Payment Date if: (1) the Tangible Equity Amount is less than 5.5%
of Total Managed Assets for the most recently completed Quarter End; or (2) the
Average Four Quarters Fixed Charge Ratio for the most recently completed Quarter
End is less than 1.10.
(ii) If the Corporation fails to satisfy either of the above tests, then
neither the Board of Directors nor any committee of the Board of Directors may
declare dividends on the Series A Preferred Stock for payment on the related
Dividend Payment Date in an aggregate amount exceeding the New Common Equity
Amount. This restriction will continue until the Corporation is able again to
satisfy both tests with respect to a Dividend Payment Date.
(b) DIVIDEND SUSPENSION NOTICE. By not later than the 15th day prior to
each Dividend Payment Date for which dividends are being suspended by reason of
the Corporation's failure to meet either of the two tests set forth in Section
5(a)(i) and the Corporation does not otherwise intend to declare or pay
dividends out of any New Common Equity Amount, the Corporation shall give notice
of such suspension by first class mail, postage prepaid, addressed to the
holders of record of the shares of Series A Preferred Stock on the applicable
Dividend Record Date at their respective last addresses appearing on the books
of the Corporation; provided that, if the Series A Preferred Stock are held in
book-entry form through DTC, the Corporation may give such notice in any manner
permitted by DTC. The Corporation shall also file a copy of such notice on a
Current Report on Form 8-K with the Commission (or, if the Corporation is not
then a reporting company under the Exchange Act, post a copy of such notice on
the Corporation's web site). Such notice, in addition to stating that dividends
will be suspended, shall set forth the fact that the Tangible Equity Amount is
less than 5.5% of Total Managed Assets for the most recently completed Quarter
End if dividends are suspended by reason of failing to satisfy the test set
forth in Section 5(a)(i)(1), and the fact that the Average Four Quarters Fixed
Charge Ratio is less than 1.10 if dividends are suspended by reason of failing
to satisfy the test set forth in Section 5(a)(i)(2). However, the Corporation
will not be required to give such notice if the amount of the dividends declared
for such Dividend Payment Date does not exceed the New Common Equity Amount.
(c) INTERPRETIVE PROVISIONS; QUALIFICATIONS, ETC. In order to give
effect to the foregoing, the following provisions apply:
(i) Except as expressly provided in Section 5(c)(ii) or in
Section 3, all financial terms used in this Section 5 that are not
specifically defined, including financial terms used within the
definitions of defined terms, shall be determined in accordance with U.S.
GAAP, as applied and reflected on the financial statements of the
Corporation
as of the relevant dates and for the relevant period, and, for so long as
the Corporation is a reporting company under the Exchange Act, as filed by
the Corporation with the Commission under the Exchange Act. If at any
relevant time or for any relevant period, the Corporation is not a
reporting company under the Exchange Act, then for all such relevant dates
and periods, the Corporation shall prepare and post on its web site the
financial statements that it would have been required to file with the
Commission had it continued to be a reporting company under the Exchange
Act, in each case on or before the dates that the Corporation would have
been required to file such financial statements with the Commission under
the Exchange Act had it continued to be an "accelerated filer" within the
meaning of Rule 12b-2 under the Exchange Act.
(ii) If because of a change in U.S. GAAP that results in a
cumulative effect of a change in accounting principle or a restatement:
(1) Tangible Equity Amount is higher or lower than it would
have been absent such change, then, for purposes of the calculations
under Section 5(a)(i), commencing with the Quarter End for which
such change in U.S. GAAP becomes effective, such Tangible Equity
Amount will be calculated on a pro forma basis as if such change had
not occurred; or
(2) Total Managed Assets is higher or lower than it would
have been absent such change, then, for purposes of the calculations
under Section 5(a)(i), commencing with the Quarter End for which
such change in U.S. GAAP becomes effective, such Total Managed
Assets will be calculated on a pro forma basis as if such change had
not occurred; or
(3) the Average Four Quarters Fixed Charge Ratio as of a
Quarter End is higher or lower than it would have been absent such
change, then, for purposes of the calculations described under
Section 5(a)(i), and for so long as such calculations are required
to be performed, the Average Four Quarters Fixed Charge Ratio will
be calculated on a pro forma basis as if such change had not
occurred.
SECTION 6. LIQUIDATION RIGHTS.
(a) VOLUNTARY OR INVOLUNTARY LIQUIDATION. In the event of any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Series A Preferred Stock and any
Parity Stock shall be entitled to receive, out of the assets of the Corporation
or proceeds thereof (whether capital or surplus) available for distribution to
stockholders of the Corporation, and after satisfaction of all liabilities and
obligations to creditors of the Corporation, if any, and before any distribution
of such assets or proceeds is made to or set aside for the holders of Common
Stock and any other Junior Stock, a liquidating distribution in an amount equal
to $25.00 per share, together with an amount equal to all dividends (if any)
that have been declared but not paid prior to the date of payment of such
distribution (but without any amount in respect of dividends that have not been
declared prior to such payment date).
(b) PARTIAL PAYMENT. If in any distribution described in Section 6(a)
above, the assets of the Corporation or proceeds thereof are not sufficient to
pay the Liquidation Preferences (as defined below) in full to all holders of
Series A Preferred Stock and all holders of any Parity Stock, the amounts paid
to the holders of Series A Preferred Stock and to the holders of all such other
Parity Stock shall be paid pro rata in accordance with the respective aggregate
Liquidation Preferences of the holders of Series A Preferred Stock and the
holders of all such other Parity Stock. In any such distribution, the
"Liquidation Preference" of any holder of Series A Preferred Stock or any Parity
Stock shall mean the amount otherwise payable to such holder in such
distribution (assuming no limitation on the assets of the Corporation available
for such distribution), including an amount equal to any declared but unpaid
dividends (and any unpaid, accrued cumulative dividends in the case of any
holder of Parity Stock on which dividends accrue on a cumulative basis, if any).
Holders of the Series A Preferred Stock shall not be entitled to any other
amounts from the Corporation after such holders have received their Liquidating
Preference in full pursuant to this Section 6.
(c) RESIDUAL DISTRIBUTIONS. If the Liquidation Preference has been paid
in full to all holders of Series A Preferred Stock and any Parity Stock, the
holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their
respective rights and preferences.
(d) MERGER, CONSOLIDATION AND SALE OF ASSETS NOT LIQUIDATION. For
purposes of this Section 6, the merger or consolidation of the Corporation with
or into any other corporation or other entity, including a merger or
consolidation in which the holders of Series A Preferred Stock receive cash,
securities or other property for their shares, or the sale, lease or exchange
(for cash, securities or other property) of all or substantially all of the
assets of the Corporation, shall not constitute a liquidation, dissolution or
winding up of the Corporation.
SECTION 7. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Series A Preferred Stock may not be
redeemed by the Corporation prior to September 15, 2010. On or after September
15, 2010, the Corporation, at its option, may redeem, in whole at any time or in
part from time to time, the shares of Series A Preferred Stock at the time
outstanding, upon notice given as provided in Section 7(c) below, at a
redemption price equal to $25.00 per Series A Preferred Stock, together (except
as otherwise provided herein below) with an amount equal to any dividends that
have been declared but not paid prior to the Redemption Date (but with no amount
in respect of any dividends that have not been declared prior to such date). The
redemption price for any shares of Series A Preferred Stock shall be payable on
the Redemption Date to the holder of such shares of Series A Preferred Stock
against surrender of the certificate(s) evidencing such shares to the
Corporation or its agent. Any declared but unpaid dividends payable on a
Redemption Date that occurs subsequent to the Dividend Record Date for a
Dividend Period shall not be paid to the holder entitled to receive the
redemption price on the Redemption Date, but rather shall be paid to the holder
of record of the redeemed shares on such Dividend Record Date relating to the
Dividend Payment Date as provided in Section 4 above.
(b) NO SINKING FUND. The Series A Preferred Stock shall not be subject
to any mandatory redemption, sinking fund, retirement fund or purchase fund or
other similar
provisions. Holders of Series A Preferred Stock will have no right to require
redemption, repurchase or retirement of any shares of Series A Preferred Stock.
(c) NOTICE OF REDEMPTION. Notice of every redemption of shares of Series
A Preferred Stock shall be given by first class mail, postage prepaid, addressed
to the holders of record of the shares to be redeemed at their respective last
addresses appearing on the books of the Corporation. Such notice of redemption
shall be delivered at least 30 calendar days and not more than 60 calendar days
before the Redemption Date. Any notice delivered as provided in this Section
7(c) shall be conclusively presumed to have been duly given, whether or not the
holder receives such notice, but failure duly to give such notice by mail, or
any defect in such notice or in the mailing thereof, to any holder of shares of
Series A Preferred Stock designated for redemption shall not affect the validity
of the proceedings for the redemption of any other shares of Series A Preferred
Stock. Notwithstanding the foregoing, if the Series A Preferred Stock is issued
in book-entry form through DTC or any other similar facility, notice of
redemption may be given to the holders of Series A Preferred Stock at such time
and in any manner permitted by such facility. Each such notice given to a holder
shall state: (i) the Redemption Date; (ii) the number of shares of Series A
Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; and (iv) the place or places where
certificates evidencing such shares are to be surrendered for payment of the
redemption price.
(d) PARTIAL REDEMPTION. In case of any redemption of only part of the
shares of Series A Preferred Stock at the time outstanding, the shares to be
redeemed shall be selected either pro rata or in such other manner as the
Corporation may determine to be fair and equitable. Subject to the provisions
hereof, the Corporation shall have full power and authority to prescribe the
terms and conditions upon which shares of Series A Preferred Stock shall be
redeemed from time to time. If fewer than all the shares represented by any
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.
(e) EFFECTIVENESS OF REDEMPTION. If notice of redemption has been duly
given and if on or before the Redemption Date specified in the notice all funds
necessary for the redemption have been set aside by the Corporation, separate
and apart from its other funds, in trust for the pro rata benefit of the holders
of the shares of the Series A Preferred Stock called for redemption, so as to be
and continue to be available therefor, then, notwithstanding that any
certificate evidencing any share of Series A Preferred Stock so called for
redemption has not been surrendered for cancellation, on and after the
Redemption Date, dividends shall cease to accrue on all shares of Series A
Preferred Stock so called for redemption, and all shares of Series A Preferred
Stock so called for redemption shall no longer be deemed outstanding and all
rights with respect to such shares shall forthwith on such Redemption Date cease
and terminate, except only the right of the holders thereof to receive the
amount payable on such redemption, without interest. Any funds unclaimed at the
end of three years from the Redemption Date shall, to the extent permitted by
law, be released to the Corporation, after which time the holders of the shares
of Series A Preferred Stock so called for redemption shall look only to the
Corporation for payment of the redemption price of such shares.
SECTION 8. VOTING RIGHTS.
(a) GENERAL. The holders of Series A Preferred Stock shall not have any
voting rights except as set forth in this Section 8 or as otherwise from time to
time required by law.
(b) RIGHT TO ELECT TWO DIRECTORS UPON NONPAYMENT EVENTS. (i) If and
whenever dividends on any shares of Series A Preferred Stock shall not have been
declared and paid for at least six Dividend Periods, whether or not consecutive
(a "Nonpayment Event"), the number of directors then constituting the Board of
Directors shall automatically be increased by two and the holders of Series A
Preferred Stock, together with the holders of any outstanding shares of Voting
Preferred Stock, voting together as a single class, shall be entitled to vote
for the election of the two additional directors (the "Preferred Stock
Directors"), provided that it shall be a qualification for election for any such
Preferred Stock Director that the election of such director shall not cause the
Corporation to violate the corporate governance requirement of the New York
Stock Exchange (or any other exchange or automated quotation system on which the
Corporation's securities may then be listed or quoted) that requires listed or
quoted companies to have a majority of independent directors; and provided
further that the Corporation's Board of Directors shall, at no time, include
more than two Preferred Stock Directors.
(ii) In the event that the holders of the Series A Preferred
Stock, and such other holders of Voting Preferred Stock, shall be entitled
to vote for the election of the Preferred Stock Directors following a
Nonpayment Event, such directors shall be initially elected following such
Nonpayment Event only at a special meeting called at the request of the
holders of record of at least 20% of the Series A Preferred Stock or of
any other such series of Voting Preferred Stock then outstanding (provided
that such request is received at least 90 calendar days before the date
fixed for the next annual or special meeting of the stockholders, failing
which election shall be held at such next annual or special meeting of
stockholders), and at each subsequent annual meeting of stockholders of
the Corporation. Such request to call a special meeting for the initial
election of the Preferred Stock Directors after a Nonpayment Event shall
be made by written notice, signed by the requisite holders of Series A
Preferred Stock or Voting Preferred Stock then outstanding, and delivered
to the Secretary of the Corporation in such manner as provided for in
Section 10 below, or as may otherwise be required by law.
(iii) When dividends have been paid in full, or declared and a sum
sufficient for such payment shall have been set aside, on the Series A
Preferred Stock for at least four Dividend Periods (whether or not
consecutive) after a Nonpayment Event (a "Nonpayment Remedy"), the holders
of the Series A Preferred Shares shall immediately and, without any
further action by the Corporation, be divested of the foregoing voting
rights, subject to the revesting of such rights in the event of each
subsequent Nonpayment Event (and the number of Dividend Periods in which
dividends have not been declared and paid shall be reset to zero). If such
voting rights for the Series A Preferred Shares and all other holders of
Voting Preferred Stock shall have terminated, the term of office of each
Preferred Stock Director so elected shall forthwith terminate and the
number of directors on the Board of Directors shall automatically be
reduced accordingly. In determining whether dividends have been paid for
four Dividend Periods following a
Nonpayment Event, the Corporation may take account of any dividend that it
elects to pay for such a Dividend Period after the regular Dividend
Payment Date for that Dividend Period has passed.
(iv) Any Preferred Stock Director may be removed at any time
without cause by the holders of record of a majority of the outstanding
shares of the Series A Preferred Stock and Voting Preferred Stock, when
they have the voting rights described above (voting together as a single
class). So long as a Nonpayment Event shall continue, any vacancy in the
office of a Preferred Stock Director (other than prior to the initial
election of Preferred Stock Directors after a Nonpayment Event) may be
filled by the written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record
of a majority of the outstanding shares of the Series A Preferred Stock
and Voting Preferred Stock (voting together as a single class), when they
have the voting rights described above; provided that the filling of each
vacancy will not cause the Corporation to violate the corporate governance
requirement of the New York Stock Exchange (or any other exchange or
automated quotation system on which the Corporation's securities may be
listed or quoted) that requires listed or quoted companies to have a
majority of independent directors. Any such vote of stockholders to
remove, or to fill a vacancy in the office of, a Preferred Stock Director
may be taken only at a special meeting of such stockholders, called as
provided above for an initial election of Preferred Stock Director after a
Nonpayment Event (provided that such request is received at least 90
calendar days before the date fixed for the next annual or special meeting
of the stockholders, failing which election shall be held at such next
annual or special meeting of stockholders). The Preferred Stock Directors
shall each be entitled to one vote per director on any matter that shall
come before the Board of Directors for a vote. Each Preferred Stock
Director elected at any special meeting of stockholders or by written
consent of the other Preferred Stock Director shall hold office until the
next annual meeting of the stockholders if such office shall not have
previously terminated as above provided.
(c) OTHER VOTING RIGHTS. So long as any shares of Series A Preferred
Stock are outstanding, in addition to any other vote or consent of stockholders
required by law or by the Certificate of Incorporation, the vote or consent of
the holders of at least 66 2/3% of the shares of Series A Preferred Stock and
any Voting Preferred Stock then outstanding (subject to the last paragraph of
this Section 8(c)) at the time outstanding and entitled to vote thereon, voting
together as a single class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration
of the Certificate of Incorporation or the Certificate of Designations to
authorize or create, or increase the authorized amount of, any shares of
any specific class or series of capital stock of the Corporation ranking
senior to the Series A Preferred Stock with respect to either or both the
payment of dividends and/or the distribution of assets on any liquidation,
dissolution or winding up of the Corporation;
(ii) Amendment of Series A Preferred Stock. Any amendment,
alteration or repeal of any provision of the Certificate of Incorporation
or the Certificate of
Designations so as to materially and adversely affect the special rights,
preferences, privileges or voting powers of the Series A Preferred Stock,
taken as a whole; or
(iii) Share Exchanges, Reclassifications, Mergers and
Consolidations. Any consummation of a binding share exchange or
reclassification involving the Series A Preferred Stock, or of a merger or
consolidation of the Corporation with another corporation or other entity,
unless in each case (x) the shares of Series A Preferred Stock remain
outstanding or, in the case of any such merger or consolidation with
respect to which the Corporation is not the surviving or resulting entity,
are converted into or exchanged for preference securities of the surviving
or resulting entity or its ultimate parent, and (y) such shares remaining
outstanding or such preference securities, as the case may be, have such
rights, preferences, privileges and voting powers, and limitations and
restrictions thereof, taken as a whole, as are not materially less
favorable to the holders thereof than the rights, preferences, privileges
and voting powers, and limitations and restrictions thereof, of the Series
A Preferred Stock immediately prior to such consummation, taken as a
whole;
provided, however, that for all purposes of this Section 8(c), (1) any increase
in the amount of the Corporation's authorized but unissued shares of preferred
stock, (2) any increase in the amount of the Corporation's authorized or issued
Series A Preferred Stock, (3) the creation and issuance, or an increase in the
authorized or issued amount, of other series of preferred stock of the
Corporation ranking equally with or junior to the Series A Preferred Stock
either or both with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative) and/or the distribution of assets upon the
liquidation, dissolution or winding up of the Corporation, will not be deemed to
materially and adversely affect the special rights, preferences, privileges or
voting powers of the Series A Preferred Shares.
The Series A Preferred Stock shall rank at least equally with the Series B
Preferred Stock and any other series of preferred stock of the Corporation that
may be issued (except for any senior series that may be issued with the
requisite consent of the holders of the Series A Preferred Stock), and will rank
senior to the shares of Common Stock and any other stock that ranks junior to
the Series A Preferred Stock either or both with respect to the payment of
dividends and/or the distributions of assets upon liquidation, dissolution or
winding up of the Corporation. Any preferred stock that the Corporation may
choose to issue in the future that does not include the restrictions on
dividends described in Section 5 above, but that otherwise ranks pari passu with
the Series A Preferred Stock, will not be treated as ranking senior to the
Series A Preferred Stock.
If any amendment, alteration, repeal, share exchange, reclassification,
merger or consolidation specified in this Section 8(c) would materially and
adversely affect one or more but not all series of Voting Preferred Stock
(including the Series A Preferred Stock for the purpose of this paragraph), then
only the series of Voting Preferred Stock materially and adversely affected and
entitled to vote shall vote as a class in lieu of all other series of Voting
Preferred Stock.
(d) CHANGES FOR CLARIFICATION. Without the consent of the holders of the
Series A Preferred Stock, so long as such action does not adversely affect the
special rights,
preferences, privileges and voting powers, and limitations and restrictions
thereof, taken as a whole, of the Series A Preferred Stock, the Corporation may
amend, alter, supplement or repeal any terms of the Series A Preferred Stock:
(i) to cure any ambiguity, or to cure, correct or supplement any
provision contained in the Certificate of Designations that may be
defective or inconsistent; or
(ii) to make any provision with respect to matters or questions
arising with respect to the Series A Preferred Stock that is not
inconsistent with the provisions of the Certificate of Designations.
(e) CHANGES AFTER PROVISION FOR REDEMPTION. No vote or consent of the
holders of Series A Preferred Stock shall be required pursuant to Section 8(b),
(c) or (d) above if, at or prior to the time when any such vote or consent would
otherwise be required pursuant to such Section, all outstanding shares of Series
A Preferred Stock shall have been redeemed, or shall have been called for
redemption upon proper notice and sufficient funds shall have been set aside for
such redemption, in each case pursuant to Section 7 above.
(f) PROCEDURES FOR VOTING AND CONSENTS. The rules and procedures for
calling and conducting any meeting of the holders of Series A Preferred Stock
(including, without limitation, the fixing of a record date in connection
therewith), the solicitation and use of proxies at such a meeting, the obtaining
of written consents and any other aspect or matter with regard to such a meeting
or such consents shall be governed by any rules the Board of Directors or a duly
authorized committee of the Board of Directors, in its discretion, may adopt
from time to time, which rules and procedures shall conform to the requirements
of the Certificate of Incorporation, the By-Laws, applicable law and any
national securities exchange or other trading facility on which the Series A
Preferred Stock is listed or traded at the time. Whether the vote or consent of
the holders of a plurality, majority or other portion of the shares of Series A
Preferred Stock and any Voting Preferred Stock has been cast or given on any
matter on which the holders of shares of Series A Preferred Stock are entitled
to vote shall be determined by the Corporation by reference to the specified
liquidation preference amounts of the Series A Preferred Stock and such other
Voting Preferred Stock voted or covered by the consent.
SECTION 9. RECORD HOLDERS. To the fullest extent permitted by applicable
law, the Corporation and the transfer agent for the Series A Preferred Stock may
deem and treat the record holder of any share of Series A Preferred Stock as the
true and lawful owner thereof for all purposes, and neither the Corporation nor
such transfer agent shall be affected by any notice to the contrary.
SECTION 10. NOTICES. All notices or communications in respect of Series A
Preferred Stock shall be sufficiently given if given in writing and delivered in
person or by first class mail, postage prepaid, or if given in such other manner
as may be permitted in the Certificate of Designations, in the Certificate of
Incorporation or By-Laws or by applicable law.
SECTION 11. NO PREEMPTIVE RIGHTS. No share of Series A Preferred Stock
shall have any rights of preemption whatsoever as to any securities of the
Corporation, or any
warrants, rights or options issued or granted with respect thereto, regardless
of how such securities, or such warrants, rights or options, may be designated,
issued or granted.
SECTION 12. OTHER RIGHTS. The shares of Series A Preferred Stock shall not
have any voting powers, preferences or relative, participating, optional or
other special rights, or qualifications, limitations or restrictions thereof,
other than as set forth in herein or in the Certificate of Incorporation or as
provided by applicable law."
IN WITNESS WHEREOF, CIT GROUP INC. has caused this certificate to be
signed by Eric S. Mandelbaum, Senior Vice President and Assistant Secretary,
this 28th day of July, 2005.
CIT GROUP INC.
By: /s/Eric S. Mandelbaum
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Name: Eric S. Mandelbaum
Title: Senior Vice President and Assistant Secretary