EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE GOLDMAN SACHS GROUP, INC.
THE GOLDMAN SACHS GROUP, INC., a corporation organized and existing
under the Delaware General Corporation Law (the "Corporation"), does hereby
certify:
1. The Corporation has not received any payment for any of its
stock.
2. The Corporation's original certificate of incorporation was filed
on July 21, 1998 with the Secretary of State of the State of Delaware under the
name The Goldman Sachs Group, Inc.
3. The following amendment and restatement of the Corporation's
Certificate of Incorporation was approved and duly adopted by a majority of the
Corporation's Board of Directors in accordance with the provisions of Sections
241 and 245 of the Delaware General Corporation Law:
FIRST. The name of the Corporation is The Goldman Sachs Group, Inc.
SECOND. The address of the Corporation's registered office in the
State of Delaware is Corporation
Trust Center, 1209 Orange Street in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law. Without limiting the generality of the foregoing, the
Corporation shall have all of the powers conferred on corporations by the
Delaware General Corporation Law and other law, including the power and
authority to make an initial charitable contribution (as defined in Section
170(c) of the Internal Revenue Code of 1986, as currently in effect or as the
same may hereafter be amended) of up to an aggregate of $200,000,000 to one or
more entities (the "Contribution"), and to make other charitable contributions
from time to time thereafter, in such amounts, on such terms and conditions and
for such purposes as may be lawful.
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 4,350,000,000, of which
4,000,000,000 shares of the par value of $0.01 per share shall be a separate
class designated as Common Stock, 200,000,000 shares of the par value of $0.01
per share shall be a separate class designated as Nonvoting Common Stock and
150,000,000 shares
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of the par value of $0.01 per share shall be a separate class designated as
Preferred Stock.
COMMON STOCK AND NONVOTING COMMON STOCK
Except as set forth in this Article FOURTH, the Common Stock and the
Nonvoting Common Stock (together, the "Common Shares") shall have the same
rights and privileges and shall rank equally, share ratably and be identical in
all respects as to all matters.
(i) Voting. Except as may be provided in this Amended and Restated
Certificate of Incorporation or required by law, the Common Stock shall have
voting rights in the election of directors and on all other matters presented to
stockholders, with each holder of Common Stock being entitled to one vote for
each share of Common Stock held of record by such holder on such matters. The
Nonvoting Common Stock shall have no voting rights other than such rights as may
be required by the first sentence of Section 242(b)(2) of the Delaware General
Corporation Law or any similar provision hereafter enacted; provided that an
amendment of this Amended and Restated Certificate of Incorporation to increase
or decrease the number of authorized shares of Nonvoting Common Stock (but not
below the number of shares thereof then outstanding) may be adopted by
resolution adopted by the board of directors of
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the Corporation and approved by the affirmative vote of the holders of a
majority of the voting power of all outstanding shares of Common Stock of the
Corporation and all other outstanding shares of stock of the Corporation
entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of
the Delaware General Corporation Law or any similar provision hereafter enacted,
with such outstanding shares of Common Stock and other stock considered for this
purpose as a single class, and no vote of the holders of any shares of Nonvoting
Common Stock, voting separately as a class, shall be required therefor.
(ii) Dividends. Subject to the rights of the holders of any series
of Preferred Stock, holders of Common Stock and holders of Nonvoting Common
Stock shall be entitled to receive such dividends and distributions (whether
payable in cash or otherwise) as may be declared on the Common Shares by the
board of directors of the Corporation from time to time out of assets or funds
of the Corporation legally available therefor; provided that the board of
directors of the Corporation shall declare no dividend, and no dividend shall be
paid, with respect to any outstanding share of Common Stock or Nonvoting Common
Stock, whether in cash or otherwise (including any dividend in shares of Common
Stock on or with respect to shares of
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Common Stock or any dividend in shares of Nonvoting Common Stock on or with
respect to shares of Nonvoting Common Stock (collectively, "Stock Dividends")),
unless, simultaneously, the same dividend is declared or paid with respect to
each share of Common Stock and Nonvoting Common Stock. If a Stock Dividend is
declared or paid with respect to one class, then a Stock Dividend shall likewise
be declared or paid with respect to the other class and shall consist of shares
of such other class in a number that bears the same relationship to the total
number of shares of such other class, issued and outstanding immediately prior
to the payment of such dividend, as the number of shares comprising the Stock
Dividend with respect to the first referenced class bears to the total number of
shares of such first referenced class, issued and outstanding immediately prior
to the payment of such dividend. Stock Dividends with respect to Common Stock
may be paid only with shares of Common Stock. Stock Dividends with respect to
Nonvoting Common Stock may be paid only with shares of Nonvoting Common Stock.
Notwithstanding the foregoing, in the case of any dividend in the form of
capital stock of a subsidiary of the Corporation, the capital stock of the
subsidiary distributed to holders of Common Stock shall be identical to the
capital stock of the subsidiary distributed to holders
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of Nonvoting Common Stock, except that the capital stock distributed to holders
of Common Stock may have full or any other voting rights and the capital stock
distributed to holders of Nonvoting Common Stock shall be non-voting to the same
extent as the Nonvoting Common Stock is non-voting.
(iii) Subdivisions, Combinations and Mergers. If the Corporation
shall in any manner split, subdivide or combine the outstanding shares of Common
Stock or the outstanding shares of Nonvoting Common Stock, the outstanding
shares of the other such class of the Common Shares shall likewise be split,
subdivided or combined in the same manner proportionately and on the same basis
per share. In the event of any merger, statutory share exchange, consolidation
or similar form of corporate transaction involving the Corporation (whether or
not the Corporation is the surviving entity), the holders of Common Stock and
the holders of Nonvoting Common Stock shall be entitled to receive the same per
share consideration, if any, except that any securities received by holders of
Common Stock in consideration of such stock may have full or any other voting
rights and any securities received by holders of Nonvoting Common Stock in
consideration of such stock shall be non-voting to the same extent as the
Nonvoting Common Stock is non-voting.
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(iv) Rights on Liquidation. Subject to the rights of the holders of
any series of Preferred Stock, in the event of any liquidation, dissolution or
winding-up of the Corporation (whether voluntary or involuntary), the assets of
the Corporation available for distribution to stockholders shall be distributed
in equal amounts per share to the holders of Common Stock and the holders of
Nonvoting Common Stock, as if such classes constituted a single class. For
purposes of this paragraph, a merger, statutory share exchange, consolidation or
similar corporate transaction involving the Corporation (whether or not the
Corporation is the surviving entity), or the sale, transfer or lease by the
Corporation of all or substantially all its assets, shall not constitute or be
deemed a liquidation, dissolution or winding-up of the Corporation.
PREFERRED STOCK
Shares of Preferred Stock may be issued in one or more series from
time to time as determined by the board of directors of the Corporation, and the
board of directors of the Corporation is authorized to fix by resolution or
resolutions the designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, of the shares of each
series of Preferred Stock, including the following:
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(i) the distinctive serial designation of such series which shall
distinguish it from other series;
(ii) the number of shares included in such series;
(iii) whether dividends shall be payable to the holders of the
shares of such series and, if so, the basis on which such holders shall be
entitled to receive dividends (which may include, without limitation, a
right to receive such dividends or distributions as may be declared on the
shares of such series by the board of directors of the Corporation, a
right to receive such dividends or distributions, or any portion or
multiple thereof, as may be declared on the Common Stock or any other
class of stock or, in addition to or in lieu of any other right to receive
dividends, a right to receive dividends at a particular rate or at a rate
determined by a particular method, in which case such rate or method of
determining such rate may be set forth), the form of such dividend, any
conditions on which such dividends shall be payable and the date or dates,
if any, on which such dividends shall be payable;
(iv) whether dividends on the shares of such series shall be
cumulative and, if so, the date or
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dates or method of determining the date or dates from which dividends on
the shares of such series shall be cumulative;
(v) the amount or amounts, if any, which shall be payable out of the
assets of the Corporation to the holders of the shares of such series upon
the voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, and the relative rights of priority, if any, of payment of
the shares of such series;
(vi) the price or prices (in cash, securities or other property or a
combination thereof) at which, the period or periods within which and the
terms and conditions upon which the shares of such series may be redeemed,
in whole or in part, at the option of the Corporation or at the option of
the holder or holders thereof or upon the happening of a specified event
or events;
(vii) the obligation, if any, of the Corporation to purchase or
redeem shares of such series pursuant to a sinking fund or otherwise and
the price or prices (in cash, securities or other property or a
combination thereof) at which, the period or periods within which and the
terms and conditions upon which the shares of
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such series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(viii) whether or not the shares of such series shall be convertible
or exchangeable, at any time or times at the option of the holder or
holders thereof or at the option of the Corporation or upon the happening
of a specified event or events, into shares of any other class or classes
or any other series of the same or any other class or classes of stock of
the Corporation or any other securities or property of the Corporation or
any other entity, and the price or prices (in cash, securities or other
property or a combination thereof) or rate or rates of conversion or
exchange and any adjustments applicable thereto; and
(ix) whether or not the holders of the shares of such series shall
have voting rights, in addition to the voting rights provided by law, and
if so the terms of such voting rights, which may provide, among other
things and subject to the other provisions of this Amended and Restated
Certificate of Incorporation, that each share of such series shall carry
one vote or more or less than one vote per share, that the holders of such
series shall be entitled to vote on certain matters as a separate class
(which for such purpose may
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be comprised solely of such series or of such series and one or more other
series or classes of stock of the Corporation) and that all the shares of
such series entitled to vote on a particular matter shall be deemed to be
voted on such matter in the manner that a specified portion of the voting
power of the shares of such series or separate class are voted on such
matter.
For all purposes, this Amended and Restated Certificate of Incorporation shall
include each certificate of designations (if any) setting forth the terms of a
series of Preferred Stock.
Subject to the rights, if any, of the holders of any series of
Preferred Stock set forth in a certificate of designations, an amendment of this
Amended and Restated Certificate of Incorporation to increase or decrease the
number of authorized shares of any series of Preferred Stock (but not below the
number of shares thereof then outstanding) may be adopted by resolution adopted
by the board of directors of the Corporation and approved by the affirmative
vote of the holders of a majority of the voting power of all outstanding shares
of Common Stock of the Corporation and all other outstanding shares of stock of
the Corporation entitled to vote thereon irrespective of the provisions of
Section 242(b)(2) of the Delaware General
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Corporation Law or any similar provision hereafter enacted, with such
outstanding shares of Common Stock and other stock considered for this purpose
as a single class, and no vote of the holders of any series of Preferred Stock,
voting as a separate class, shall be required therefor.
Except as otherwise required by law or provided in the certificate
of designations for the relevant series, holders of Common Shares, as such,
shall not be entitled to vote on any amendment of this Amended and Restated
Certificate of Incorporation that alters or changes the powers, preferences,
rights or other terms of one or more outstanding series of Preferred Stock if
the holders of such affected series are entitled, either separately or together
with the holders of one or more other series of Preferred Stock, to vote thereon
as a separate class pursuant to this Amended and Restated Certificate of
Incorporation or pursuant to the Delaware General Corporation Law as then in
effect.
OPTIONS, WARRANTS AND OTHER RIGHTS
The board of directors of the Corporation is authorized to create
and issue options, warrants and other rights from time to time entitling the
holders thereof to purchase securities or other property of the Corporation or
any other entity, including any class or series of stock of
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the Corporation or any other entity and whether or not in connection with the
issuance or sale of any securities or other property of the Corporation, for
such consideration (if any), at such times and upon such other terms and
conditions as may be determined or authorized by the board of directors of the
Corporation and set forth in one or more agreements or instruments. Among other
things and without limitation, such terms and conditions may provide for the
following:
(i) adjusting the number or exercise price of such options, warrants
or other rights or the amount or nature of the securities or other
property receivable upon exercise thereof in the event of a subdivision or
combination of any securities, or a recapitalization, of the Corporation,
the acquisition by any person of beneficial ownership of securities
representing more than a designated percentage of the voting power of any
outstanding series, class or classes of securities, a change in ownership
of the Corporation's securities or a merger, statutory share exchange,
consolidation, reorganization, sale of assets or other occurrence relating
to the Corporation or any of its securities, and restricting the ability
of the Corporation to enter into an agreement with respect to any such
transaction
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absent an assumption by another party or parties thereto of the
obligations of the Corporation under such options, warrants or other
rights;
(ii) restricting, precluding or limiting the exercise, transfer or
receipt of such options, warrants or other rights by any person that
becomes the beneficial owner of a designated percentage of the voting
power of any outstanding series, class or classes of securities of the
Corporation or any direct or indirect transferee of such a person, or
invalidating or voiding such options, warrants or other rights held by any
such person or transferee; and
(iii) permitting the board of directors (or certain directors
specified or qualified by the terms of the governing instruments of such
options, warrants or other rights) to redeem, terminate or exchange such
options, warrants or other rights.
This paragraph shall not be construed in any way to limit the power of the board
of directors of the Corporation to create and issue options, warrants or other
rights.
FIFTH. The name and mailing address of the incorporator is Gregory
K. Palm, 85 Broad Street, New York, New York 10004.
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SIXTH. All corporate powers shall be exercised by the board of
directors of the Corporation, except as otherwise specifically required by law
or as otherwise provided in this Amended and Restated Certificate of
Incorporation. Any meeting of stockholders may be postponed by action of the
board of directors at any time in advance of such meeting. The board of
directors of the Corporation shall have the power to adopt such rules and
regulations for the conduct of the meetings and management of the affairs of the
Corporation as they may deem proper and the power to adjourn any meeting of
stockholders without a vote of the stockholders, which powers may be delegated
by the board of directors to the chairman of such meeting either in such rules
and regulations or pursuant to the by-laws of the Corporation.
Special meetings of stockholders of the Corporation may be called at
any time by, but only by, the board of directors of the Corporation, to be held
at such date, time and place either within or without the State of Delaware as
may be stated in the notice of the meeting.
The board of directors of the Corporation is authorized to adopt,
amend or repeal by-laws of the Corporation. No adoption, amendment or repeal of
a by-law by action of stockholders shall be effective unless approved
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by the affirmative vote of the holders of not less than 80% of the voting power
of all outstanding shares of Common Stock of the Corporation and all other
outstanding shares of stock of the Corporation entitled to vote on such matter,
with such outstanding shares of Common Stock and other stock considered for this
purpose as a single class. Any vote of stockholders required by this Article
SIXTH shall be in addition to any other vote of stockholders that may be
required by law, this Amended and Restated Certificate of Incorporation, the
by-laws of the Corporation, any agreement with a national securities exchange or
otherwise.
SEVENTH. Elections of directors need not be by written ballot except
and to the extent provided in the by-laws of the Corporation.
EIGHTH. The directors of the Corporation shall be divided into three
classes. The number of directors of the Corporation and the number of directors
in each class of directors shall be fixed only by resolution of the board of
directors of the Corporation from time to time. The initial term of office of
the first such class of directors shall expire at the annual meeting of
stockholders in 2000, the initial term of office of the second such class of
directors shall expire at the annual meeting of stockholders in 2001 and the
initial term of office of the third such class of
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directors shall expire at the annual meeting of stockholders in 2002, with each
such class of directors to hold office until their successors have been duly
elected and qualified. At each annual meeting of stockholders, directors elected
to succeed the directors whose terms expire at such annual meeting shall be
elected to hold office for a term expiring at the annual meeting of stockholders
in the third year following the year of their election and until their
successors have been duly elected and qualified. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes in such
manner as the board of directors of the Corporation shall determine, but no
decrease in the number of directors may shorten the term of any incumbent
director.
No director who is part of any such class of directors may be
removed except both for cause and with the affirmative vote of the holders of
not less than 80% of the voting power of all outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors, considered
for this purpose as a single class.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors or from any other cause (other
than vacancies and newly created directorships which the holders of any class
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or classes of stock or series thereof are expressly entitled by this Amended and
Restated Certificate of Incorporation to fill) shall be filled by, and only by,
a majority of the directors then in office, although less than a quorum, or by
the sole remaining director. Any director appointed to fill a vacancy or a newly
created directorship shall hold office until the next election of the class of
directors of the director which such director replaced or the class of directors
to which such director was appointed, and until his or her successor is elected
and qualified or until his or her earlier resignation or removal.
Notwithstanding the foregoing, in the event that the holders of any
class or series of Preferred Stock of the Corporation shall be entitled, voting
separately as a class, to elect any directors of the Corporation, then the
number of directors that may be elected by such holders voting separately as a
class shall be in addition to the number fixed pursuant to a resolution of the
board of directors of the Corporation. Except as otherwise provided in the terms
of such class or series, (i) the terms of the directors elected by such holders
voting separately as a class shall expire at the annual meeting of stockholders
next succeeding their election without regard to the classification of other
directors and (ii) any director or directors elected by such
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holders voting separately as a class may be removed, with or without cause, by
the holders of a majority of the voting power of all outstanding shares of stock
of the Corporation entitled to vote separately as a class in an election of such
directors.
NINTH. In taking any action, including action that may involve or
relate to a change or potential change in the control of the Corporation, a
director of the Corporation may consider, among other things, both the long-term
and short-term interests of the Corporation and its stockholders and the effects
that the Corporation's actions may have in the short term or long term upon any
one or more of the following matters:
(i) the prospects for potential growth, development, productivity
and profitability of the Corporation;
(ii) the Corporation's current employees;
(iii) the retired former partners of The Goldman Sachs Group, L.P.
("GS Group") and the Corporation's employees and other beneficiaries
receiving or entitled to receive retirement, welfare or similar benefits
from or pursuant to any plan sponsored, or agreement entered into, by the
Corporation;
(iv) the Corporation's customers and creditors;
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(v) the ability of the Corporation to provide, as a going concern,
goods, services, employment opportunities and employment benefits and
otherwise to contribute to the communities in which it does business; and
(vi) such other additional factors as a director may consider
appropriate in such circumstances.
Nothing in this Article NINTH shall create any duty owed by any director of the
Corporation to any person or entity to consider, or afford any particular weight
to, any of the foregoing matters or to limit his or her consideration to the
foregoing matters. No such employee, retired former partner of GS Group, former
employee, beneficiary, customer, creditor or community or member thereof shall
have any rights against any director of the Corporation or the Corporation under
this Article NINTH.
TENTH. From and after the consummation of the initial public
offering of the shares of Common Stock of the Corporation, no action of
stockholders of the Corporation required or permitted to be taken at any annual
or special meeting of stockholders of the Corporation may be taken without a
meeting of stockholders, without prior notice and without a vote, and the power
of stockholders of the Corporation to consent in writing to the taking of any
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action without a meeting is specifically denied. Notwithstanding this Article
TENTH, the holders of any series of Preferred Stock of the Corporation shall be
entitled to take action by written consent to such extent, if any, as may be
provided in the terms of such series.
ELEVENTH. No provision of Article SIXTH, EIGHTH, NINTH, TENTH or
TWELFTH or of this Article ELEVENTH shall be amended, modified or repealed, and
no provision inconsistent with any such provision shall become part of this
Amended and Restated Certificate of Incorporation, unless such matter is
approved by the affirmative vote of the holders of not less than 80% of the
voting power of all outstanding shares of Common Stock of the Corporation and
all other outstanding shares of stock of the Corporation entitled to vote on
such matter, with such outstanding shares of Common Stock and other stock
considered for this purpose as a single class. Any vote of stockholders required
by this Article ELEVENTH shall be in addition to any other vote of the
stockholders that may be required by law, this Amended and Restated Certificate
of Incorporation, the by-laws of the Corporation, any agreement with a national
securities exchange or otherwise.
TWELFTH. A director of the Corporation shall not be liable to the
Corporation or its stockholders for
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monetary damages for breach of fiduciary duty as a director of the Corporation,
except to the extent that such exemption from liability or limitation thereof is
not permitted under the Delaware General Corporation Law as currently in effect
or as the same may hereafter be amended.
Pursuant to the Plan of Incorporation of GS Group, dated as of March
8, 1999, as currently in effect or as the same may hereafter be amended (the
"Plan"), the Corporation has the right, but not the obligation, to make special
arrangements with any person who was a partner of GS Group participating in the
Plan to ameliorate, in whole or in part, certain significantly disproportionate
tax or other burdens. The board of directors of the Corporation is authorized to
cause the Corporation to make such arrangements (which may include special
payments) as the board of directors of the Corporation may, in its sole
discretion, deem appropriate to effectuate the intent of the relevant provision
of the Plan and the Corporation and each stockholder of the Corporation shall,
to the fullest extent permitted by law, be deemed to have approved and ratified
any such determination and to have waived any claim or objection on behalf of
the Corporation or any such stockholder arising out of the making of such
arrangements.
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Pursuant to the Plan, the Corporation has the right, but not the
obligation, to register with the Securities and Exchange Commission the resale
of certain securities of the Corporation by directors, employees and former
directors and employees of the Corporation and its subsidiaries and affiliates
and former partners and employees of GS Group and its subsidiaries and
affiliates and to undertake various actions and to enter into agreements and
arrangements in connection therewith (collectively, the "Registration
Arrangements"). The board of directors of the Corporation is authorized to cause
the Corporation to undertake such Registration Arrangements as the board of
directors of the Corporation may, in its sole discretion, deem appropriate and
the Corporation and each stockholder of the Corporation shall, to the fullest
extent permitted by law, be deemed to have approved and ratified any such
determination and to have waived any claim or objection on behalf of the
Corporation or any such stockholder arising out of the undertaking of such
Registration Arrangements.
The Corporation and each stockholder of the Corporation shall, to
the fullest extent permitted by law, be deemed to have approved and ratified any
decision by the board of directors of the Corporation to make the
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Contribution referred to in Article THIRD, including the amount thereof (up to
the limit specified in Article THIRD) and to have waived any claim or objection
on behalf of the Corporation or any such stockholder arising out of any such
decision to make, or the making of, the Contribution.
The authorizations, approvals and ratifications contained in the
second, third and fourth paragraphs of this Article TWELFTH shall not be
construed to indicate that any other arrangements or contributions not
specifically referred to in such paragraphs are, by reason of such omission, not
within the power and authority of the board of directors of the Corporation or
that the determination of the board of directors of the Corporation with respect
thereto should be judged by any legal standard other than that which would have
applied but for the inclusion of the second, third and fourth paragraphs of this
Article TWELFTH.
No amendment, modification or repeal of this Article TWELFTH shall
adversely affect any right or protection of a director of the Corporation that
exists at the time of such amendment, modification or repeal.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to
be signed and attested by its duly authorized officer on this 4th day of
May, 1999.
/s/ Gregory K. Palm
-------------------------------
Gregory K. Palm
General Counsel
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