Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No.1 to Form S-1 164 964K
2: EX-3.1 Certificate of Incorporation 6 26K
3: EX-3.2B Amended Certificate of Designations 23 65K
4: EX-3.3 Certificate of Designation (Cumulative Voting) 12 36K
5: EX-3.4 Certificate of Designation (Redeemable Voting) 21 58K
6: EX-3.5 Restated By-Laws of the Registrant 20 79K
7: EX-4.2 Specimen Common Stock Certificate 2 14K
8: EX-5 Opinion of Thomas A. Russo, Esq. 2 16K
9: EX-7 Opinion of Skadden, Arps, Slate, Meagher & Flom 4 21K
10: EX-8 Opinion of Skadden, Arps, Slate, Meagher & Flom 2 15K
11: EX-10.1 Form of Agreement of Tenants-In-Common 150 249K
14: EX-10.10B Form of Warrant 28 52K
15: EX-10.17 Voluntary Deferred Compensation Plan 21 87K
16: EX-10.18 Executive and Select Employees Plan 10 26K
12: EX-10.2 Restated Tax Allocation Agreement 67 178K
17: EX-10.20 The E.F. Hutton Partnership Award Plan 20 83K
18: EX-10.23 Lehman Brothers Inc. Employee Ownership Plan 25 100K
19: EX-10.23A Amended Employee Ownership Plan 1 11K
20: EX-10.24 1994 Management Ownership Plan. 26 89K
21: EX-10.25 1994 Management Replacement Plan. 16 58K
22: EX-10.26 Short-Term Executive Compensation Plan 7 30K
23: EX-10.27 1994 Employee Stock Purchase Plan 17 61K
24: EX-10.28 Participating Preferred Plan 19 61K
25: EX-10.28A Amendment to Particpating Preferred Plan 1 11K
26: EX-10.29 Purchase and Exchange Agreement 17 61K
13: EX-10.3 Intercompany Agreement 30 85K
27: EX-10.30 Registration Rights Agreement 31 55K
28: EX-10.31 Option Agreement 45 85K
29: EX-10.32 Form of 1994 Agreement 35 102K
30: EX-10.33 Compensation Plan (For Select Executives) 21 87K
31: EX-10.34 Compensation Plan ( for Transferred Participants ) 22 90K
32: EX-10.35 Executive and Select Employee Plan 11 26K
33: EX-23.1 Consent of Ernst & Young 1 11K
34: EX-23.4 Consent of Lazard Freres & Co. 1 11K
35: EX-23.5 Consent of James D. Wolfensohn Incorporated 1 11K
EX-3.1 — Certificate of Incorporation
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EXHIBIT 3.1
1
draft
4/27/94
RESTATED CERTIFICATE OF INCORPORATION
OF
LEHMAN BROTHERS HOLDINGS INC.
Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware
I, _____________, the _________________ of Lehman Brothers Holdings
Inc. (the "Corporation"), a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, do hereby
certify that the Certificate of Incorporation of Lehman Brothers Holdings Inc.
originally filed on December 29, 1983 under the name Shearson/American Express
Holdings Inc., as heretofore amended and restated, has been amended and
restated, in accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware, as amended, and as so amended and restated, has
been duly adopted in accordance with Section 245 and is set forth in its
entirety as follows:
1. Name. The name of the corporation is Lehman Brothers Holdings Inc.
(the "Corporation").
2. Address. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The registered Agent at such address is The
Corporation Trust Company.
3. Purpose. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "GCL").
4. Capital Stock.
4.01 Authorized Shares. The total number of shares of capital stock
which the Corporation shall have authority to issue is three hundred million
(300,000,000) shares of common stock with one vote per share, $0.10 par value
per share (the "Common Stock), and thirty eight thousand (38,000,000) shares of
preferred stock, $1.00 par value per share (the "Preferred Stock"). Shares of
Preferred Stock may be issued from time to time in one or more classes or
series, each of which class or series shall have such distinctive designation
or title as shall be fixed by the Board of Directors of the Corporation (the
"Board of Directors") or any committee thereof established by resolution of the
Board of Directors pursuant to the By-Laws prior to the issuance of any shares
thereof. Each such class or series of Preferred Stock shall
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have such voting powers, full or limited, or no voting powers, and such
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated in
such resolution or resolutions providing for the issue of such class or series
of Preferred Stock as may be adopted from time to time by the Board of
Directors prior to the issuance of any shares thereof pursuant to the authority
hereby expressly vested in it, all in accordance with the laws of the State of
Delaware.
4.02 No Preemptive Rights. No shares of the capital stock of the
Corporation shall be entitled to preemptive rights.
4.03 Reverse Stock Split. Each share of Common Stock shall be
reclassified on the basis of [0.3179723] shares for each share and,
accordingly, each share of Common Stock, par value $0.10 per share, outstanding
on [May __, 1994] shall, without further action by the Corporation or any
stockholder, be deemed to represent [0.3179723] shares of Common Stock, par
value $0.10 per share. All fractional shares resulting from the foregoing
reclassification shall be eliminated and each holder thereof shall be entitiled
to receive a cash payment equal to such holder's fraction of a share of Common
Stock multiplied by [$25.53].
5. By-Laws. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the By-Laws of the Corporation.
6. Election of Directors.
6.1 Number, Election and Term. Except as otherwise fixed pursuant to
the provisions of Article 4 hereof relating to the rights of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under specified
circumstances, the number of directors of the Corporation shall be fixed from
time to time by or pursuant to the By-Laws. The Board of Directors shall be
divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. Class I
directors shall be elected initially for a one-year term, Class II directors
initially for a two-year term and Class III directors initially for a
three-year term. At each succeeding annual meeting of stockholders beginning
in 1995, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class shall hold office for a term that
shall coincide with the remaining term of that class, but in no case will a
decrease in the number of directors shorten the term of any incumbent director.
A director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, disability, resignation, retirement,
disqualification or removal
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from office. No decrease in the number of directors constituting the Board
of Directors shall shorten the term of any incumbent director.
6.2 Newly Created Directorships and Vacancies. Newly created
directorships resulting from any increase in the authorized number of directors
and any vacancies on the Board of Directors resulting from death, disability,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a majority vote of the directors then in office, by a sole
remaining director or if there are no directors then in office, by the
stockholders.
7. Indemnification.
7.1 Right to Indemnification. The Corporation shall have the power
to indemnify to the fullest extent permitted, from time to time, by applicable
law any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature by reason of the fact that
he is or was a director, officer, employee or agent of the Corporation, or,
while a director, office, employee or agent of the Corporation, is or was
serving at the request of the Corporation as a director, officer, trustee,
employee or agent of or in any other capacity with another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines, penalties and
amounts paid in settlement in connection with such action, suit or proceeding.
The Corporation shall have the power to enter into agreements providing any
such indemnity.
7.2 Expenses. The Corporation shall have the power to advance to a
director, officer, employee or agent of the Corporation expenses incurred in
connection with defending any action, suit or proceeding referred to above or
in the By-Laws at any time before the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article 7
or as provided in the By-Laws. The Corporation shall have the power to enter
into agreements providing for such advancement of expenses.
7.3 Non-exclusivity. The indemnification and other rights provided
for in this Article 7 shall not be exclusive of any provision with respect to
indemnification or the payment of expenses in the By-Laws or any other contract
or agreement between the Corporation and any officer, director, employee or
agent of the Corporation or any other person.
7.4 Future Changes. Neither the amendment nor repeal of this Article
7, nor the adoption of any provision of this Restated Certificate of
Incorporation inconsistent with this Article 7, shall eliminate or reduce the
effect of such provisions in respect of any act or omission or any matter
occurring prior to such amendment, repeal or adoption of
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an inconsistent provision regardless of when any cause of action, suit or claim
relating to any such matter accrued or matured or was commenced, and such
provision shall continue to have effect in respect of such act, omission or
matter as if such provision had not been so amended or repealed or if a
provision inconsistent therewith had not been so adopted.
8. Compromise or Settlement Proposals. Whenever a compromise or
arrangement is proposed between this Corporation and its creditors or any class
of them and/or between this Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on
the application in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or off the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this Corporation as a consequence
of such compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders of class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
9. Action of Stockholders. Any action required or permitted to be taken
by the holders of the Common Stock of the Corporation must be effected at a
duly called annual or special meeting of such holders and may not be taken by
written consent in lieu of a meeting.
10. Directors' Liability.
10.1 Limitation of Liability of Directors. A director shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director; provided that this sentence shall
not eliminate or limit the liability of a director (i) for any breach of his
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 of the GCL, or (iv) for any
transaction from which the Director derives an improper personal benefit. If
the GCL is amended after the date this Restated Certificate of Incorporation
becomes effective to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the GCL, as so amended.
10.2. Future Changes. Neither the amendment nor repeal of this
Article 10, nor the
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adoption of any provision of this Restated Certificate of Incorporation
inconsistent with Article 10 shall eliminate or reduce the effect of such
provisions, in respect of any matter occurring prior to such amendment, repeal
or adoption of an inconsistent provision or in respect of any act or omission
or any matter occurring prior to such amendment, repeal or adoption of an
inconsistent provision, regardless of when any cause of action, suit or claim
relating to any such matter accrued or matured or was commenced, and such
provision shall continue to have effect in respect of such act, omission or
matter as if such provision had not been so amended or repealed or if a
provision inconsistent therewith had not been so adopted.
11. Amendments. The affirmative vote of the holders of at least a
majority of shares of capital stock entitled to vote, voting together as a
single class, shall be required to amend or repeal any provision in this
Restated Certificate of Incorporation or adopt any provision inconsistent with
any such provision unless a higher percentage is specified herein, in which
case such higher percentage will be applicable.
IN WITNESS WHEREOF, the undersigned has hereunto signed her name and
affirms that the statements made in this Restated Certificate of Incorporation
are true under the penalties of perjury this ______ day of _____________, 1994.
[Corporate Seal]
---------------------------
Attest:
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