GENERAL MOTORS CORPORATION
Certificate of Incorporation
As Restated and Filed
March 1, 2004
The name of the Corporation is
GENERAL MOTORS CORPORATION
The registered office of the Corporation shall be located at 1209 Orange
Street, in the City of Wilmington, County of New Castle, State of Delaware. The
name of its registered agent in charge thereof is The Corporation Trust Company,
1209 Orange Street, in the City of Wilmington, County of New Castle, State of
The nature of the business of the Corporation and the objects and purposes
proposed to be transacted, promoted, or carried on by it, are as follows,
(a) To manufacture, buy, sell and deal in automobiles, trucks, cars, boats,
flying machines and other vehicles, their parts and accessories, and kindred
articles, and generally to conduct an automobile business in all its branches.
(b) To purchase or otherwise acquire, lease, assign, mortgage, pledge or
otherwise dispose of any trade names, trade marks, concessions, inventions,
formulae, improvements, processes of any nature whatsoever, copyrights, and
letters patent of the United States and of foreign countries, and to accept and
grant licenses thereunder.
(c) To subscribe or cause to be subscribed for, and to purchase or otherwise
acquire, hold for investment, sell, assign, transfer, mortgage, pledge,
exchange, distribute or otherwise dispose of the whole or any part of the shares
of the capital stock, bonds, coupons, mortgages, deeds of trust, debentures,
securities, obligations, notes and other evidences of indebtedness of any
corporation, stock company or association, now or hereafter existing, and
whether created by or under the laws of the State of Delaware, or otherwise; and
while owners of any of said shares of capital stock or bonds or other property
to exercise all the rights, powers and privileges of ownership of every kind and
description, including the right to vote thereon, with power to designate some
person for that purpose from time to time to the same extent as natural persons
might or could do.
(d) To purchase, hold, sell and reissue the shares of its own capital stock.
(e) To buy, lease, or otherwise acquire, so far as may be permitted by law, the
whole or any part of the business, goodwill, and assets of any person, firm,
association or corporation (either foreign or domestic) engaged in a business of
the same general character as that for which this Corporation is organized.
(f) To endorse, guarantee and secure the payment and satisfaction of bonds,
coupons, mortgages, deeds of trust, debentures, securities, obligations and
evidences of indebtedness, and also to guarantee and secure the payment or
satisfaction of interest on obligations and of dividends on shares of the
capital stock of other corporations; also to assume the whole or any part of the
liabilities, existing or prospective, of any person, corporation, firm or
association; and to aid in any manner any other person or corporation with which
it has business dealings, or whose stocks, bonds, or other obligations are held
or are in any manner guaranteed by the Corporation, and to do any other acts and
things for the preservation, protection, improvement, or enhancement of the
value of such stocks, bonds, or other obligations.
(g) To engage in any other manufacturing or mercantile business of any kind or
character whatsoever, and to that end to acquire, hold, own and dispose of any
and all property, assets, stocks, bonds and rights of any and every kind.
(h) Without in any particular limiting any of the objects and powers of the
Corporation, it is hereby expressly declared and provided that the Corporation
shall have power to do all things herein before enumerated, and also to issue or
exchange stocks, bonds, and other obligations in payment for property purchased
or acquired by it, or for any other object in or about its business; to borrow
money without limit; to mortgage or pledge its franchises, real or personal
property, income and profits accruing to it, any stocks, bonds or other
obligations, or any property which may be acquired by it, and to secure any
bonds or other obligations by it issued or incurred.
(i) To carry on any business whatsoever which the Corporation may deem proper or
convenient in connection with any of the foregoing purposes or otherwise, or
which may be calculated, directly or indirectly, to promote the interests of the
Corporation or to enhance the value of its property; to conduct its business in
this State, in other States, in the District of Columbia, in the Territories and
Colonies of the United States, and in foreign countries; and to hold, purchase,
mortgage and convey real and personal property, either in or out of the State of
Delaware, and to have and to exercise all the powers conferred by the laws of
Delaware upon corporations formed under the act pursuant to and under which this
Corporation is formed.
The total authorized capital stock of the Corporation is as follows:
2,106,000,000 shares, of which 6,000,000 shares shall be Preferred Stock,
without par value ("Preferred Stock"), 100,000,000 shares shall be Preference
Stock, $0.10 par value ("Preference Stock"), and 2,000,000,000 shares shall be
Common Stock, $1 2/3 par value ("Common Stock").
DIVISION I: COMMON STOCK.
The privileges and restrictions of the shares of the Common Stock are as
(a) Dividend Rights.
Subject to the express terms of any outstanding series of Preferred Stock
or Preference Stock, dividends may be paid in cash or otherwise upon the Common
Stock out of the assets of the Corporation and may be declared and paid only to
the extent of the assets of the Corporation legally available for the payment of
dividends. Subject to the foregoing, the declaration and payment of dividends on
the Common Stock, and the amount thereof, shall at all times be solely in the
discretion of the Board of Directors of the Corporation.
(b) Voting Rights.
The holders of Common Stock shall be entitled to vote as a single class on
all matters to be voted on by the stockholders of the Corporation. Each holder
of Common Stock shall be entitled to one vote, in person or by proxy, for each
share of Common Stock standing in his name on the stock transfer books of the
(c) Liquidation Rights.
In the event of the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after there shall have been paid
or set apart for the holders of Preferred Stock and Preference Stock the full
preferential amounts to which they are entitled, the holders of Common Stock
shall be entitled to receive the assets of the Corporation remaining for
distribution to its stockholders ratably on a per share basis. None of the
consolidation or merger of the Corporation into or with any other entity or
entities, the sale or transfer by the Corporation of all or any part of its
assets, or the reduction of the capital stock of the Corporation, shall be
deemed to be a liquidation, dissolution or winding up of the Corporation within
the meaning of this paragraph.
DIVISION II: PREFERRED STOCK.
A statement of the relative rights of the holders of Preferred Stock and a
statement of the limits of variation between each series of Preferred Stock as
to rate of dividends and price of redemption and a statement of the voting
powers and the designations, powers, privileges and rights, and the
qualifications, limits or restrictions thereof of the various series thereof,
except so far as the Board of Directors is expressly authorized to fix the same
by resolution or resolutions for the various series of the Preferred Stock, are
Preferred Stock of the Corporation may be issued in various series as may
be determined from time to time by the Board of Directors, each such series to
be distinctly designated. All shares of any one series of Preferred Stock shall
be alike in every particular, and all series shall rank equally and be identical
in all respects except as to the dividend rate and the amount payable upon the
exercise of the right to redeem.
The dividend on the Preferred Stock of each series shall be such rate as
may be fixed by the Board of Directors in the resolution or resolutions
providing for the issuance of the Preferred Stock of such series, and as shall
be stated on the face or back of the certificates of stock therefor.
The amount payable on the exercise of the right to redeem Preferred Stock
of each series shall be an amount as may be fixed by the Board of Directors in
the resolution or resolutions providing for the issuance of the Preferred Stock
of such series, and as shall be stated on the face or back of the certificates
of stock therefor.
All other provisions herein set forth in respect of the Preferred Stock of
the Corporation shall apply to all the Preferred Stock of the Corporation,
irrespective of any variations between the Preferred Stock of the different
The holders of the Preferred Stock shall be entitled to receive cumulative
dividends, when and as declared by the Board of Directors, at the rates fixed
for the respective series in the Certificate of Incorporation or in the
resolution or resolutions of the Board of Directors providing for the issuance
of the respective series, and no more, payable quarterly on the dates to be
fixed by the By-Laws. The periods between such dates commencing on such dates
are herein designated as "dividend periods." Dividends on all shares of any one
series shall commence to accrue and be cumulative from the first day of the
current dividend period within which shares of such series are first issued, but
in the event of the issue of additional shares of such series subsequent to the
date of the first issue of said shares of such series, all dividends paid on the
shares of such series prior to the issue of such additional shares and all
dividends declared payable to holders of record of shares of such series of a
date prior to such issue shall be deemed to have been paid in respect of the
additional shares so issued. Such dividends on the Preferred Stock shall be in
preference and priority to any payment on any other class of stock of the
The dividends on the Preferred Stock shall be cumulative and shall be
payable before any dividend on the Common Stock or any series of the Preference
Stock shall be paid or set apart so that if in any year dividends at the rates
determined for the respective series of the Preferred Stock shall not be paid
thereon, the deficiency shall be payable before any dividend shall be paid upon
or set apart for the Common Stock or any series of the Preference Stock.
Dividends shall not be declared and paid on the shares of Preferred Stock of any
one series for any dividend period unless dividends have been or are
contemporaneously paid or declared and set apart for payment thereof on the
shares of Preferred Stock of all series, for all the dividend periods
terminating on the same or an earlier date.
Whenever all cumulative dividends on the Preferred Stock outstanding shall
have been paid and a sum sufficient for the payment of the next ensuing
quarterly dividend on the Preferred Stock outstanding shall have been set aside
from the surplus or net profits, the Board of Directors may declare dividends on
the Common Stock or any series of the Preference Stock, payable then or
thereafter, out of any remaining surplus or net profits, and no holders of any
shares of any series of Preferred Stock, as such, shall be entitled to share
At the option of the Board of Directors, the Preferred Stock shall be
subject to redemption at the amounts fixed for the respective series in the
Certificate of Incorporation or in the resolution or resolutions of the Board of
Directors providing for the issuance of the respective series, together, in the
case of each class or series, with accrued dividends on the shares to be
redeemed, on any dividend paying date in such manner as the Board of Directors
The holders of the Preferred Stock shall not have any voting power
whatsoever, except upon the question of selling, conveying, transferring or
otherwise disposing of the property and assets of the Corporation as an entirety
and except as otherwise required by law.
DIVISION III: PREFERENCE STOCK.
The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article FOURTH, to provide for the issuance of
Preference Stock from time to time in one or more series of any number of
shares, with a distinctive serial designation for each series, provided that the
aggregate number of shares issued and not cancelled of any and all such series
shall not exceed the total number of shares of Preference Stock authorized by
this Article FOURTH, all as shall hereafter be stated and expressed in the
resolution or resolutions providing for the issue of such Preference Stock from
time to time adopted by the Board of Directors. Subject to said limitations, and
provided that each series of Preference Stock shall rank junior to the Preferred
Stock with respect to the payment of dividends and distributions in liquidation,
each series of Preference Stock (a) may have such voting powers, full or
limited, or may be without voting powers; (b) may be subject to redemption at
such time or times and at such prices; (c) may be entitled to receive dividends
(which may be cumulative or noncumulative) at such rate or rates, on such
conditions, and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or series of stock; (d)
may have such rights upon the dissolution of, or upon any distribution of the
assets of, the Corporation; (e) may be made convertible into, or exchangeable
for, shares of any other class or classes of or any other series of the same or
any other class or classes of stock of the Corporation or any other issuer, at
such price or prices or at such rates of exchange, and with such adjustments;
(f) may be entitled to the benefit of a sinking fund to be applied to the
purchase or redemption of shares of such series in such amount or amounts; (g)
may be entitled to the benefit of conditions and restrictions upon the creation
of indebtedness of the Corporation or any subsidiary, upon the issue of any
additional stock (including additional shares of such series or of any other
series) and upon the payment of dividends or the making of other distributions
on, and the purchase, redemption or other acquisition by the Corporation or any
subsidiary of any outstanding stock of the Corporation; and (h) may have such
other relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof; all as shall be stated in said resolution
or resolutions providing for the issue of such series of Preference Stock.
Shares of any series of Preference Stock which have been redeemed (whether
through the operation of a sinking fund or otherwise) or which, if convertible
or exchangeable, have been converted into or exchanged for shares of stock of
any other class or classes shall have the status of authorized and unissued
shares of Preference Stock of the same series and may be reissued as a part of
the series of which they were originally a part or may be reclassified and
reissued as part of a new series of Preference Stock to be created by resolution
or resolutions of the Board of Directors or as part of any other series of
Preference Stock, all subject to the conditions or restrictions on issuance set
forth in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of Preference Stock.
DIVISION IV: MISCELLANEOUS.
From time to time, the Preferred Stock, the Preference Stock, and the
Common Stock may be increased or decreased according to law, and may be issued
in such amounts and proportions as shall be determined by the Board of
Directors, and as may be permitted by law.
In the event of any liquidation or dissolution or winding up, whether
voluntary or otherwise, of the Corporation, the holders of the Preferred Stock
shall be entitled to be paid the redemption price of each series in full, as
aforesaid, out of the assets whether capital or surplus, and, in every case, the
unpaid dividends accrued on such shares, whether or not earned or declared,
before any distribution of the assets to be distributed shall be made to the
holders of Common Stock or any series of the Preference Stock; but the holders
of such shares shall be entitled to no further participation in such
distribution. If the assets distributable on such liquidation, dissolution or
winding up shall be insufficient to permit the payment to the holders of the
Preferred Stock of the full amount of the redemption price of each series in
full as aforesaid and accrued dividends as aforesaid, the said assets shall be
distributed pro rata among the holders of the respective series of the Preferred
Stock. After all payments are made as aforesaid, any required payments shall be
made with respect to the Preference Stock, if any, outstanding, and the
remaining assets and funds shall be divided among and paid to the holders of
Common Stock ratably on a per share basis. The merger or consolidation of the
Corporation into or with any other corporation shall not be or be deemed to be a
distribution of assets or a dissolution, liquidation or winding up for the
purposes of this paragraph.
Any Preferred Stock, Preference Stock, or Common Stock, authorized
hereunder or under any amendment hereof, in the discretion of the Board of
Directors, may be issued, except as herein otherwise provided, in payment for
property or services, or as bonuses to employees of the Corporation or employees
of subsidiary companies, or for other assets or securities including cash,
necessary or desirable, in the judgment of the Board of Directors, to be
purchased or acquired from time to time for the Corporation, or for any other
lawful purpose of the Corporation.
If it seems desirable so to do, the Board of Directors may from time to
time issue scrip for fractional shares of stock. Such scrip shall not confer
upon the holder any right to dividends or any voting or other rights of a
stockholder of the Corporation, but the Corporation shall from time to time,
within such time as the Board of Directors may determine or without limit of
time if the Board of Directors so determines, issue one or more whole shares of
stock upon the surrender of scrip for fractional shares aggregating the number
of whole shares issuable in respect of the scrip so surrendered, provided that
the scrip so surrendered shall be properly endorsed for transfer if in
The Corporation is to have perpetual existence.
The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
The number of Directors of the Corporation, not less than three, shall be
fixed from time to time by the Bylaws and the number may be altered as therein
provided. In case of any increase in the number of Directors, the additional
Directors shall be elected as provided by the Bylaws, by the Directors, or by
the stockholders at an annual or special meeting. In case of any vacancy in the
Board of Directors, the remaining Directors, by affirmative vote of a majority
thereof, may elect a successor to hold office for the unexpired portion of the
term of the Director whose place is vacant and until his successor shall be duly
elected and qualified.
No Director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174, or any successor provision thereto, of the Delaware General
Corporation Law, or (iv) for any transaction from which the Director derived an
improper personal benefit.
In furtherance, and not in limitation of the powers conferred by law, the
Board of Directors are expressly authorized:
(a) To make, alter, amend and repeal the Bylaws of the Corporation.
(b) To remove at any time any officer elected or appointed by the Board of
Directors but only by the affirmative vote of a majority of the whole Board of
Directors. Any other officer or employee of the Corporation may be removed at
any time by a vote of the Board of Directors, or by any committee or superior
officer upon whom such power of removal may be conferred by the Bylaws or by the
vote of the Board of Directors.
(c) To designate, by resolution passed by a majority of the whole Board, two or
more of their number to constitute an executive committee, who, to the extent
provided in said resolution or in the Bylaws of the Corporation, shall have and
exercise the powers of the Board of Directors in the management of the business
and affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it. A majority of
such committee shall constitute a quorum for the transaction of business.
(d) To designate any other standing committees by the affirmative vote of
a majority of the whole Board, and such standing committees shall have and may
exercise such powers as shall be conferred or authorized by the Bylaws,
including the power to cause the seal of the Corporation to be affixed to any
papers which may require it.
(e) Every right of action by or on behalf of the Corporation or by any
stockholder against any past, present or future member of the Board of
Directors, officer or employee of the Corporation arising out of or in
connection with any bonus, stock option, performance achievement or other
incentive plan at any time approved by the stockholders of the Corporation,
irrespective of the place where action may be brought and irrespective of the
place of residence of any such Director, officer or employee, shall cease and be
barred by the expiration of three years from whichever is the later of (a) the
date of the act or omission in respect of which such right of action arises or
(b) the first date upon which there has been made generally available to
stockholders an annual report of the Corporation and a proxy statement for the
annual meeting of stockholders following the issuance of such annual report,
which annual report and proxy statement alone or together set forth, for the
related period, the amount of any credit to a reserve for the purpose of any
such plan, and the aggregate bonus, performance achievement or other awards, and
the aggregate options or other grants, made under any such plan; and every right
of action by any employee (past, present or future) against the Corporation
arising out of or in connection with any such plan shall, irrespective of the
place where action may be brought, cease and be barred by the expiration of
three years from the date of the act or omission in respect of which such right
of action arises.
(f) From time to time to fix and to vary the sum to be reserved over and
above its capital stock paid in before declaring any dividends; to direct and
determine the use and disposition of any surplus or net profits over and above
the capital stock paid in; to fix the time of declaring and paying any dividend,
and, unless otherwise provided in this Certificate or in the Bylaws, to
determine the amount of any dividend. All sums reserved as working capital or
otherwise may be applied from time to time to the acquisition or purchase of its
bonds or other obligations or shares of its own capital stock or other property
to such extent and in such manner and upon such terms as the Board of Directors
shall deem expedient and neither the stocks, bonds, or other property so
acquired shall be regarded as accumulated profits for the purpose of declaring
or paying dividends unless otherwise determined by the Board of Directors, but
shares of such capital stock so purchased or acquired may be resold, unless such
shares shall have been retired for the purpose of decreasing the Company's
capital stock as provided by law.
(g) From time to time to determine whether and to what extent, and at what
time and places and under what conditions and regulations the accounts and books
of the Corporation (other than the stock ledger), or any of them, shall be open
to the inspection of the stockholders; and no stockholder shall have any right
to inspect any account or book or document of the Corporation, except as
conferred by statute or authorized by the Board of Directors or by a resolution
of the stockholders.
(h) With the written assent of the holders of two-thirds of its issued and
outstanding stock of all classes without a meeting, or pursuant to the
affirmative vote in person or by proxy of the holders of two-thirds of its
issued and outstanding stock of all classes, at any meeting, either annual or
special, called as provided in the Bylaws, the Board of Directors may sell,
convey, assign, transfer or otherwise dispose of, any part or all of the
property, assets, rights and privileges of the Corporation as an entirety, for
the stock, bonds, obligations or other securities of another corporation of this
or of any other State, Territory, Colony or foreign country, or for cash, or
partly cash, credit, or property, or for such other consideration as the Board
of Directors, in their absolute and uncontrolled discretion, may determine.
(i) The Corporation may by its Bylaws confer upon the Directors powers and
authorities additional to the foregoing and to those expressly conferred upon
them by statute.
Both the stockholders and the Directors of the Corporation may hold their
meetings and the Corporation may have an office or offices in such place or
places outside of the State of Delaware as the Bylaws may provide, and the
Corporation may keep its books outside of the State of Delaware except as
otherwise provided by law.
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation in the manner, now or
hereafter prescribed by statute, and all rights conferred on stockholders herein
are granted subject to this reservation.
[As Filed: 2004]
CERTIFICATE OF AMENDMENT
RESTATED CERTIFICATE OF INCORPORATION
GENERAL MOTORS CORPORATION
General Motors Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY:
FIRST: The name of the Corporation is General Motors Corporation.
SECOND: The date of filing of the Corporation’s original Certificate of Corporation with the Secretary of State of the State of Delaware was October 13, 1916.
THIRD: The date of filing of the Corporation’s Restated Certificate of Incorporation with the Secretary of State of the State of Delaware was March 1, 2004.
FOURTH: On June 1, 2009, the Corporation and certain of its direct and indirect subsidiaries filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) (Case Nos. 09-50026 (REG), 09-50027 (REG), 09-50028 (REG) and 09-13558 (REG), respectively). This Certificate of Amendment to the Restated Certificate of Incorporation of the Corporation has been duly adopted in accordance with the provisions of Sections 242 and 303 of the Delaware General Corporation Law (the “DGCL”), pursuant to the authority granted to the Corporation under Section 303 of the DGCL to put into effect and carry out the transactions contemplated by that certain Amended and Restated Master Sale and Purchase Agreement, dated as of June 26, 2009, as amended, by and among the Corporation, certain of its direct and indirect subsidiaries, and NGMCO, Inc., as approved on July 5, 2009 by order (the “Order”) of the Bankruptcy Court. Provision for amending the Restated Certificate of Incorporation of the Corporation to change the name of the Corporation is contained in the Order of the Bankruptcy Court having jurisdiction for the reorganization proceedings of the Corporation under the Federal Bankruptcy Code.
FIFTH: Article First of the Restated Certificate of Incorporation of the Corporation be, and it hereby is, amended to read as follows:
“The name of the Corporation is Motors Liquidation Company”
SIXTH: That this Certificate of Amendment shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has signed this Certificate of Amendment as of this 9 day of July, 2009.
GENERAL MOTORS CORPORATION
/s/ Niharika Ramdev