GENERAL MOTORS CORPORATION

 

                                    Restated

                          Certificate of Incorporation

 

                              As Restated and Filed

                                  March 1, 2004

 

                                     FIRST:

 

      The name of the Corporation is

 

                           GENERAL MOTORS CORPORATION

 

 

                                    SECOND:

 

      The registered office of the Corporation shall be located at 1209 Orange

Street, in the City of Wilmington, County of New Castle, State of Delaware. The

name of its registered agent in charge thereof is The Corporation Trust Company,

1209 Orange Street, in the City of Wilmington, County of New Castle, State of

Delaware.

 

                                     THIRD:

 

      The nature of the business of the Corporation and the objects and purposes

proposed to be transacted, promoted, or carried on by it, are as follows,

to-wit:

 

(a) To manufacture, buy, sell and deal in automobiles, trucks, cars, boats,

flying machines and other vehicles, their parts and accessories, and kindred

articles, and generally to conduct an automobile business in all its branches.

 

(b) To purchase or otherwise acquire, lease, assign, mortgage, pledge or

otherwise dispose of any trade names, trade marks, concessions, inventions,

formulae, improvements, processes of any nature whatsoever, copyrights, and

letters patent of the United States and of foreign countries, and to accept and

grant licenses thereunder.

 

(c) To subscribe or cause to be subscribed for, and to purchase or otherwise

acquire, hold for investment, sell, assign, transfer, mortgage, pledge,

exchange, distribute or otherwise dispose of the whole or any part of the shares

of the capital stock, bonds, coupons, mortgages, deeds of trust, debentures,

securities, obligations, notes and other evidences of indebtedness of any

corporation, stock company or association, now or hereafter existing, and

whether created by or under the laws of the State of Delaware, or otherwise; and

while owners of any of said shares of capital stock or bonds 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.

 

                                    FOURTH:

 

      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

follows:

 

(a)   Dividend Rights.

 

      Subject to the express terms of any outstanding series of Preferred Stock

or Preference Stock, dividends may be paid in cash or otherwise upon the Common

Stock 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

Corporation.

 

(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

as follows:

 

      Preferred Stock of the Corporation may be issued in various series as may

be determined from time to time by the Board of Directors, each such series to

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

series.

 

      The holders of the Preferred Stock shall be entitled to receive cumulative

dividends, when and as declared by the Board of Directors, at the rates fixed

for the respective series in the Certificate of Incorporation or in the

resolution or resolutions of the Board of Directors providing for the issuance

of the respective series, and no more, payable quarterly on the dates to be

fixed by the By-Laws. The periods between such dates commencing on such dates

are herein designated as "dividend periods." Dividends on all shares of any one

series shall commence to accrue and be cumulative from the first day of the

current dividend period within which shares of such series are first issued, but

in the event of the issue of additional shares of such series subsequent to the

date of the first issue of said shares of such series, all dividends paid on the

shares of such series prior to the issue of such additional shares and all

dividends declared payable to holders of record of shares of such series of a

date prior to such issue shall be deemed to have been paid in respect of the

additional shares so issued. Such dividends on the Preferred Stock shall be in

preference and priority to any payment on any other class of stock of the

Corporation.

 

      The dividends on the Preferred Stock shall be cumulative and shall be

payable before any dividend on the Common Stock 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

therein.

 

      At the option of the Board of Directors, the Preferred Stock shall be

subject to redemption at the amounts fixed for the respective series in the

Certificate of Incorporation or in the resolution or resolutions of the Board of

Directors providing for the issuance of the respective series, together, in the

case of each class or series, with accrued dividends on the shares to be

redeemed, on any dividend paying date in such manner as the Board of Directors

may determine.

 

      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

registered form.

 

                                     FIFTH:

 

      The Corporation is to have perpetual existence.

 

                                     SIXTH:

 

      The private property of the stockholders shall not be subject to the

payment of corporate debts to any extent whatever.

 

                                    SEVENTH:

 

      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.

 

                                    EIGHTH:

 

      Both the stockholders and the Directors of the Corporation may hold their

meetings and the Corporation may have an office or offices in such place or

places outside of the State of Delaware as the Bylaws may provide, and the

Corporation may keep its books outside of the State of Delaware except as

otherwise provided by law.

 

                                     NINTH:

 

      The Corporation reserves the right to amend, alter, change or repeal any

provision contained in this Certificate of Incorporation in the manner, now or

hereafter prescribed by statute, and all rights conferred on stockholders herein

are granted subject to this reservation.

[As Filed: 2004]

 

 

CERTIFICATE OF AMENDMENT

OF

RESTATED CERTIFICATE OF INCORPORATION

OF

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

By:

 

/s/ Niharika Ramdev

Name:

 

Niharika Ramdev

Title:

 

Assistant Treasurer