EXHIBIT 3.2
BY-LAWS
OF
THE GOLDMAN SACHS GROUP, INC.
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place either within or
without the State of Delaware as may be designated by the Board of Directors
from time to time. Any other business properly brought before the meeting may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders may be
called at any time by, and only by, the Board of Directors, 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.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise required by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or special,
may be adjourned from time to time, to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting. If the adjournment is
for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. At each meeting of stockholders, except where
otherwise required by law, the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote on
a matter at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, where a separate vote by
class or classes is required for any matter, the holders of a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum to take action with respect to that vote on
that matter. Two or more classes or series of stock shall be considered a single
class if the holders thereof are entitled to vote together as a single class at
the meeting. In the absence of a quorum of the holders of any class of stock
entitled to vote on a matter, the meeting of such class may be adjourned from
time to time in the manner provided by Sections 1.4 and 1.6 of these by-laws
until a quorum of such class shall be so present or represented. Shares of its
own capital stock belonging on the record date for the meeting to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of the Corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided over
by a Chairman of the Board, if any, or in the absence of a Chairman of the Board
by a Vice Chairman of the Board, if any, or in the absence of a Vice Chairman of
the Board by a Chief Executive Officer, or in the absence of a Chief Executive
Officer by a President, or in the absence of a President by a Chief Operating
Officer, or in the absence of a Chief Operating
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Officer by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. A Secretary, or in the absence
of a Secretary an Assistant Secretary, shall act as secretary of the meeting,
but in the absence of a Secretary and any Assistant Secretary the chairman of
the meeting may appoint any person to act as secretary of the meeting.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to adjourn a meeting of stockholders without a vote of stockholders
and to prescribe such rules, regulations and procedures and to do all such acts
and things as are necessary or desirable for the proper conduct of the meeting
and are not inconsistent with any rules or regulations adopted by the Board of
Directors pursuant to the provisions of the certificate of incorporation,
including the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments on the affairs
of the Corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof and the opening and closing of the
voting polls for each item upon which a vote is to be taken.
Section 1.7. Inspectors. Prior to any meeting of stockholders, the Board
of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief
Executive Officer, a President, a Chief Operating Officer, a Vice President or
any other officer designated by the Board shall appoint one or more inspectors
to act at such meeting and make a written report thereof and may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at the meeting of stockholders,
the person presiding at the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the
validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and
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certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint or retain
other persons to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted therewith, any
information provided by a stockholder who submits a proxy by telegram, cablegram
or other electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and records of
the Corporation, and they may also consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider other
reliable information for such purpose, they shall, at the time they make their
certification, specify the precise information considered by them, including the
person or persons from whom they obtained the information, when the information
was obtained, the means by which the information was obtained and the basis for
the inspectors' belief that such information is accurate and reliable.
Section 1.8. Voting; Proxies. Unless otherwise provided in the certificate
of incorporation, each stockholder entitled to vote at any meeting of
stockholders shall be entitled to one vote for each share of stock held by such
stockholder which has voting power upon the matter in question. If the
certificate of incorporation provides for more or less than one vote for any
share on any matter, every reference in these by-laws to a majority or other
proportion of shares of stock shall refer to such majority or other proportion
of the votes of such shares of stock. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is
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irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power, regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. A stockholder may revoke any proxy which
is not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with a Secretary. Voting at meetings of stockholders need not be by
written ballot unless so directed by the chairman of the meeting or the Board of
Directors. Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors. In all other matters, unless otherwise required by
law, the certificate of incorporation or these by-laws, the affirmative vote of
the holders of a majority of the shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter shall be the act
of the stockholders. Where a separate vote by class or classes is required, the
affirmative vote of the holders of a majority (or, in the case of an election of
directors, a plurality) of the shares of such class or classes present in person
or represented by proxy at the meeting shall be the act of such class or
classes, except as otherwise required by law, the certificate of incorporation
or these by-laws.
Section 1.9. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty nor less than ten
days before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the
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Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to the action for
which a record date is being established. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
Section 1.10. List of Stockholders Entitled to Vote. A Secretary shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the municipality where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 1.11. Advance Notice of Stockholder Nominees for Director and
Other Stockholder Proposals. (a) The matters to be considered and brought before
any annual or special meeting of stockholders of the Corporation shall be
limited to only such matters, including the nomination and election of
directors, as shall be brought properly before such meeting in compliance with
the procedures set forth in this Section 1.11.
(b) For any matter to be properly brought before any annual meeting of
stockholders, the matter must be (i) specified in the notice of annual meeting
given by or at
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the direction of the Board of Directors, (ii) otherwise brought before the
annual meeting by or at the direction of the Board of Directors or (iii) brought
before the annual meeting in the manner specified in this Section 1.11(b)(x) by
a stockholder that holds of record stock of the Corporation entitled to vote at
the annual meeting on such matter (including any election of a director) or (y)
by a person (a "Nominee Holder") that holds such stock through a nominee or
"street name" holder of record of such stock and can demonstrate to the
Corporation such indirect ownership of, and such Nominee Holder's entitlement to
vote, such stock on such matter. In addition to any other requirements under
applicable law, the certificate of incorporation and these by-laws, persons
nominated by stockholders for election as directors of the Corporation and any
other proposals by stockholders shall be properly brought before an annual
meeting of stockholders only if notice of any such matter to be presented by a
stockholder at such meeting (a "Stockholder Notice") shall be delivered to a
Secretary at the principal executive office of the Corporation not less than
ninety nor more than one hundred and twenty days prior to the first anniversary
date of the annual meeting for the preceding year (or, in the case of the annual
meeting of stockholders to be held in 2000, not less than ninety nor more than
one hundred and twenty days prior to May 1, 2000); provided, however, that if
and only if the annual meeting is not scheduled to be held within a period that
commences thirty days before and ends thirty days after such anniversary date
(or May 1, 2000, in the case of the annual meeting of stockholders to be held in
2000) (an annual meeting date outside such period being referred to herein as an
"Other Meeting Date"), such Stockholder Notice shall be given in the manner
provided herein by the later of (i) the close of business on the date ninety
days prior to such Other Meeting Date or (ii) the close of business on the tenth
day following the date on which such Other Meeting Date is first publicly
announced or disclosed. Any stockholder desiring to nominate any person or
persons (as the case may be) for election as a director or directors of the
Corporation at an annual meeting of stockholders shall deliver, as part of such
Stockholder Notice, a statement in writing setting forth the name of the person
or persons to be nominated, the number and class of all shares of each class of
stock of the Corporation owned of record and beneficially by each such person,
as reported to such stockholder by such person, the information regarding each
such person required by paragraphs (a), (e) and (f) of Item
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401 of Regulation S-K adopted by the Securities and Exchange Commission, each
such person's signed consent to serve as a director of the Corporation if
elected, such stockholder's name and address, the number and class of all shares
of each class of stock of the Corporation owned of record and beneficially by
such stockholder and, in the case of a Nominee Holder, evidence establishing
such Nominee Holder's indirect ownership of stock and entitlement to vote such
stock for the election of directors at the annual meeting. Any stockholder who
gives a Stockholder Notice of any matter (other than a nomination for director)
proposed to be brought before an annual meeting of stockholders shall deliver,
as part of such Stockholder Notice, the text of the proposal to be presented and
a brief written statement of the reasons why such stockholder favors the
proposal and setting forth such stockholder's name and address, the number and
class of all shares of each class of stock of the Corporation owned of record
and beneficially by such stockholder, any material interest of such stockholder
in the matter proposed (other than as a stockholder), if applicable, and, in the
case of a Nominee Holder, evidence establishing such Nominee Holder's indirect
ownership of stock and entitlement to vote such stock on the matter proposed at
the annual meeting. As used in these by-laws, shares "beneficially owned" shall
mean all shares which such person is deemed to beneficially own pursuant to
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (the "Exchange
Act"). If a stockholder is entitled to vote only for a specific class or
category of directors at a meeting (annual or special), such stockholder's right
to nominate one or more individuals for election as a director at the meeting
shall be limited to such class or category of directors.
Notwithstanding any provision of this Section 1.11 to the contrary, in the
event that the number of directors to be elected to the Board of Directors of
the Corporation at the next annual meeting of stockholders is increased by
virtue of an increase in the size of the Board of Directors and either all of
the nominees for director at the next annual meeting of stockholders or the size
of the increased Board of Directors is not publicly announced or disclosed by
the Corporation at least one hundred days prior to the first anniversary of the
preceding year's annual meeting (or, in the case of the annual meeting of
stockholders to be held in 2000, at least one hundred days prior to May 1,
2000), a Stockholder Notice shall also be considered timely
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hereunder, but only with respect to nominees to stand for election at the next
annual meeting as the result of any new positions created by such increase, if
it shall be delivered to a Secretary at the principal executive office of the
Corporation not later than the close of business on the tenth day following the
first day on which all such nominees or the size of the increased Board of
Directors shall have been publicly announced or disclosed.
(c) Except as provided in the immediately following sentence, no matter
shall be properly brought before a special meeting of stockholders unless such
matter shall have been brought before the meeting pursuant to the Corporation's
notice of such meeting. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any stockholder entitled to vote for the election of such director(s)
at such meeting may nominate a person or persons (as the case may be) for
election to such position(s) as are specified in the Corporation's notice of
such meeting, but only if the Stockholder Notice required by Section 1.11(b)
hereof shall be delivered to a Secretary at the principal executive office of
the Corporation not later than the close of business on the tenth day following
the first day on which the date of the special meeting and either the names of
all nominees proposed by the Board of Directors to be elected at such meeting or
the number of directors to be elected shall have been publicly announced or
disclosed.
(d) For purposes of this Section 1.11, a matter shall be deemed to have
been "publicly announced or disclosed" if such matter is disclosed in a press
release reported by the Dow Jones News Service, the Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission.
(e) In no event shall the adjournment of an annual meeting or a special
meeting, or any announcement thereof, commence a new period for the giving of
notice as provided in this Section 1.11. This Section 1.11 shall not apply to
(i) any stockholder proposal made pursuant to Rule 14a-8 under the Exchange Act
or (ii) any nomination of a director in an election in which only the holders of
one or more series of Preferred Stock of the Corporation issued pursuant to
Article FOURTH of the certificate of incorporation are
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entitled to vote (unless otherwise provided in the terms of such stock).
(f) The chairman of any meeting of stockholders, in addition to making any
other determinations that may be appropriate to the conduct of the meeting,
shall have the power and duty to determine whether notice of nominees and other
matters proposed to be brought before a meeting has been duly given in the
manner provided in this Section 1.11 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters shall not be
considered.
Section 1.12. Approval of Stockholder Proposals. Except as otherwise
required by law, any matter (other than a nomination for director) that has been
properly brought before an annual or special meeting of stockholders of the
Corporation by a stockholder (including a Nominee Holder) in compliance with the
procedures set forth in Section 1.11 shall require for approval thereof the
affirmative vote of the holders of not less than a majority 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 Section 1.12 shall be in
addition to any other vote of stockholders of the Corporation that may be
required by law, the certificate of incorporation or these by-laws, by any
agreement with a national securities exchange or otherwise.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors, except as may be otherwise required by law or provided in the
certificate of incorporation. 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 from time to time. If the holders of any class or
classes of stock or series thereof are entitled by the certificate of
incorporation to elect one or more directors, the preceding sentence shall not
apply to such directors and
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the number of such directors shall be as provided in the terms of such stock.
Directors need not be stockholders.
Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies.
Each director shall hold office until the next election of the class or category
for which such director shall have been chosen, and until his or her successor
is elected and qualified or until his or her earlier resignation or removal. Any
director may resign at any time upon written notice to the Board of Directors or
to a Chairman of the Board, a Vice Chairman of the Board, a Chief Executive
Officer, a President, a Chief Operating Officer or a Secretary. Such resignation
shall take effect at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it
effective. No director may be removed except as provided in the certificate of
incorporation. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors (other than any directors elected
in the manner described in the next sentence) or from any other cause 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. Whenever the holders of
any class or classes of stock or series thereof are entitled by the certificate
of incorporation to elect one or more directors, vacancies and newly created
directorships of such class or classes or series may be filled by, and only by,
a majority of the directors elected by such class or classes or series then in
office, or by the sole remaining director so elected. Any director elected or
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.
Section 2.3. Regular Meetings. Regular meetings of the Board of Directors
may be held at such places within or without the State of Delaware and at such
times as the Board may from time to time determine, and if so determined notice
thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of Directors
may be held at any time or place within or without the State of Delaware
whenever called by a
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Chairman of the Board, if any, by a Vice Chairman of the Board, if any, by a
Chief Executive Officer, if any, by a President, if any, by a Chief Operating
Officer, if any, or by any two directors. Reasonable notice thereof shall be
given by the person or persons calling the meeting.
Section 2.5. Participation in Meetings by Conference Telephone Permitted.
Unless otherwise restricted by the certificate of incorporation or these
by-laws, members of the Board of Directors, or any committee designated by the
Board, may participate in a meeting of the Board or of such committee, as the
case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At each meeting of the
Board of Directors, one-half of the number of directors equal to (i) the total
number of directors fixed by resolution of the board of directors (including any
vacancies) plus (ii) the number of directors elected by a holder or holders of
Preferred Stock voting separately as a class, as described in the fourth
paragraph of Article EIGHTH of the certificate of incorporation (including any
vacancies), shall constitute a quorum for the transaction of business. The vote
of a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board unless the certificate of incorporation or these
by-laws shall require a vote of a greater number. In case at any meeting of the
Board a quorum shall not be present, the members or a majority of the members of
the Board present may adjourn the meeting from time to time until a quorum shall
be present.
Section 2.7. Organization. Meetings of the Board of Directors shall be
presided over by a Chairman of the Board, if any, or in the absence of a
Chairman of the Board by a Vice Chairman of the Board, if any, or in the absence
of a Vice Chairman of the Board, by a Chief Executive Officer, or in the absence
of a Chief Executive Officer, by a President, or in the absence of a President,
by a Chief Operating Officer, or in the absence of a Chief Operating Officer, by
a chairman chosen at the meeting. A Secretary, or in the absence of a Secretary
an Assistant Secretary, shall act as secretary of the meeting, but in the
absence of
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a Secretary and any Assistant Secretary the chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 2.8. Action by Directors Without a Meeting. Unless otherwise
restricted by the certificate of incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof, may be taken without a meeting if all members of the
Board or of such committee, as the case may be, then in office consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 2.9. Compensation of Directors. Unless otherwise restricted by the
certificate of incorporation or these by-laws, the Board of Directors shall have
the authority to fix the compensation of directors.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors or
in these by-laws, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by law
to be submitted to
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stockholders for approval or (ii) adopting, amending or repealing these by-laws.
Section 3.2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may adopt, amend and repeal
rules for the conduct of its business. In the absence of a provision by the
Board or a provision in the rules of such committee to the contrary, a majority
of the entire authorized number of members of such committee shall constitute a
quorum for the transaction of business, the vote of a majority of the members
present at a meeting at the time of such vote if a quorum is then present shall
be the act of such committee, and in other respects each committee shall conduct
its business in the same manner as the Board conducts its business pursuant to
Article II of these by-laws.
ARTICLE IV
Officers
Section 4.1. Officers; Election or Appointment. The Board of Directors
shall take such action as may be necessary from time to time to ensure that the
Corporation has such officers as are necessary, under Section 5.1 of these
by-laws and the Delaware General Corporation Law as currently in effect or as
the same may hereafter be amended, to enable it to sign stock certificates. In
addition, the Board of Directors at any time and from time to time may elect (i)
one or more Chairmen of the Board and/or one or more Vice Chairmen of the Board
from among its members, (ii) one or more Chief Executive Officers, one or more
Presidents and/or one or more Chief Operating Officers, (iii) one or more Vice
Presidents, one or more Treasurers and/or one or more Secretaries and/or (iv)
one or more other officers, in the case of each of (i), (ii), (iii) and (iv) if
and to the extent the Board deems desirable. The Board of Directors may give any
officer such further designations or alternate titles as it considers desirable.
In addition, the Board of Directors at any time and from time to time may
authorize any officer of the Corporation to appoint one or more officers of the
kind described in clauses (iii) and (iv) above. Any number of offices may be
held by the same person and directors may hold any office unless the certificate
of incorporation or these by-laws otherwise provide.
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Section 4.2. Term of Office; Resignation; Removal; Vacancies. Unless
otherwise provided in the resolution of the Board of Directors electing or
authorizing the appointment of any officer, each officer shall hold office until
his or her successor is elected or appointed and qualified or until his or her
earlier resignation or removal. Any officer may resign at any time upon written
notice to the Board or to such person or persons as the Board may designate.
Such resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. The Board may remove any officer with or without cause at
any time. Any officer authorized by the Board to appoint a person to hold an
office of the Corporation may also remove such person from such office with or
without cause at any time, unless otherwise provided in the resolution of the
Board providing such authorization. Any such removal shall be without prejudice
to the contractual rights of such officer, if any, with the Corporation, but the
election or appointment of an officer shall not of itself create contractual
rights. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled by the Board at any regular or
special meeting or by an officer authorized by the Board to appoint a person to
hold such office.
Section 4.3. Powers and Duties. The officers of the Corporation shall have
such powers and duties in the management of the Corporation as shall be stated
in these by-laws or in a resolution of the Board of Directors which is not
inconsistent with these by-laws and, to the extent not so stated, as generally
pertain to their respective offices, subject to the control of the Board. A
Secretary or such other officer appointed to do so by the Board shall have the
duty to record the proceedings of the meetings of the stockholders, the Board of
Directors and any committees in a book to be kept for that purpose. The Board
may require any officer, agent or employee to give security for the faithful
performance of his or her duties.
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ARTICLE V
Stock
Section 5.1. Certificates; Uncertificated Shares. The shares of stock in
the Corporation shall be represented by certificates, provided that the Board of
Directors of the Corporation may provide by resolution or resolutions that some
or all of any or all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to any such shares represented by a
certificate theretofore issued until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution or resolutions by
the Board of Directors of the Corporation, every holder of stock represented by
certificates, and upon request every holder of uncertificated shares, shall be
entitled to have a certificate signed by or in the name of the Corporation by a
Chairman or Vice Chairman of the Board or a President or Vice President, and by
a Treasurer, Assistant Treasurer, Secretary or Assistant Secretary, representing
the number of shares of stock in the Corporation owned by such holder. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
Certificates representing shares of stock of the Corporation may bear such
legends regarding restrictions on transfer or other matters as any officer or
officers of the Corporation may determine to be appropriate and lawful.
If the Corporation is authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise required by law, in lieu of
the foregoing
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requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of such class or series of stock
and the qualifications, limitations or restrictions of such preferences and/or
rights. Within a reasonable time after the issuance or transfer of
uncertificated shares of any class or series of stock, the Corporation shall
send to the registered owner thereof a written notice containing the information
required by law to be set forth or stated on certificates representing shares of
such class or series or a statement that the Corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of such class or
series and the qualifications, limitations or restrictions of such preferences
and/or rights.
Except as otherwise expressly provided by law, the rights and obligations
of the holders of uncertificated shares and the rights and obligations of the
holders of certificates representing stock of the same class and series shall be
identical.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new certificate of stock in the place
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
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Section 6.2. Seal. The Corporation may have a corporate seal which shall
have the name of the Corporation inscribed thereon and shall be in such form as
may be approved from time to time by the Board of Directors. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Whenever notice is required to be given by law or under any
provision of the certificate of incorporation or these by-laws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors or members of a committee of directors need be specified in any
written waiver of notice unless so required by the certificate of incorporation
or these by-laws.
Section 6.4. Indemnification. The Corporation shall indemnify to the full
extent permitted by law any person made or threatened to be made a party to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person or such person's testator
or intestate is or was a director or officer of the Corporation, is or was a
director, officer, trustee, member, stockholder, partner, incorporator or
liquidator of a Subsidiary of the Corporation, is or was a member of the
Shareholders' Committee acting pursuant to the Shareholders' Agreement, to be
entered into among the Corporation and certain of its Stockholders as
contemplated by the Plan of Incorporation of The Goldman Sachs Group, L.P.
adopted on March 8, 1999, as amended, or serves or served at the request of the
Corporation as a director, officer, trustee, member, stockholder, partner,
incorporator or liquidator of or in any other capacity for any other enterprise.
Expenses, including attorneys' fees, incurred by any such person in defending
any such action, suit or proceeding shall be paid or reimbursed by the
Corporation promptly upon demand by such person and, if any such demand
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is made in advance of the final disposition of any such action, suit or
proceeding, promptly upon receipt by the Corporation of an undertaking of such
person to repay such expenses if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation. The rights provided
to any person by this by-law shall be enforceable against the Corporation by
such person, who shall be presumed to have relied upon it in serving or
continuing to serve as a director or officer or in such other capacity as
provided above. In addition, the rights provided to any person by this by-law
shall survive the termination of such person as any such director, officer,
trustee, member, stockholder, partner, incorporator or liquidator and, insofar
as such person served at the request of the Corporation as a director, officer,
trustee, member, stockholder, partner, incorporator or liquidator of or in any
other capacity for any other enterprise, shall survive the termination of such
request as to service prior to termination of such request. No amendment of this
by-law shall impair the rights of any person arising at any time with respect to
events occurring prior to such amendment.
Notwithstanding anything contained in this Section 6.4, except for
proceedings to enforce rights provided in this Section 6.4, the Corporation
shall not be obligated under this Section 6.4 to provide any indemnification or
any payment or reimbursement of expenses to any director, officer or other
person in connection with a proceeding (or part thereof) initiated by such
person (which shall not include counterclaims or crossclaims initiated by
others) unless the Board of Directors has authorized or consented to such
proceeding (or part thereof) in a resolution adopted by the Board.
For purposes of this by-law, the term "Subsidiary" shall mean any
corporation, partnership, limited liability company or other entity in which the
Corporation owns, directly or indirectly, a majority of the economic or voting
ownership interest; the term "other enterprise" shall include any corporation,
partnership, limited liability company, joint venture, trust, association or
other unincorporated organization or other entity and any employee benefit plan;
the term "officer," when used with respect to the Corporation, shall refer to
any officer elected by or appointed pursuant to authority granted by the Board
of Directors of the Corporation pursuant to clauses (i), (ii), (iii) and (iv) of
Section 4.1 of these by-laws, when used
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with respect to a Subsidiary or other enterprise that is a corporation, shall
refer to any person elected or appointed pursuant to the by-laws of such
Subsidiary or other enterprise or chosen in such manner as is prescribed by the
by-laws of such Subsidiary or other enterprise or determined by the Board of
Directors of such Subsidiary or other enterprise, and when used with respect to
a Subsidiary or other enterprise that is not a corporation or is organized in a
foreign jurisdiction, the term "officer" shall include in addition to any
officer of such entity, any person serving in a similar capacity or as the
manager of such entity; service "at the request of the Corporation" shall
include service as a director or officer of the Corporation which imposes duties
on, or involves services by, such director or officer with respect to an
employee benefit plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan shall be deemed to
be indemnifiable expenses; and action by a person with respect to an employee
benefit plan which such person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be action not
opposed to the best interests of the Corporation.
To the extent authorized from time to time by the Board of Directors, the
Corporation may provide to (i) any one or more employees and other agents of the
Corporation, (ii) any one or more officers, employees and other agents of any
Subsidiary and (iii) any one or more directors, officers, employees and other
agents of any other enterprise, rights of indemnification and to receive payment
or reimbursement of expenses, including attorneys' fees, that are similar to the
rights conferred in this Section 6.4 on directors and officers of the
Corporation or any Subsidiary or other enterprise. Any such rights shall have
the same force and effect as they would have if they were conferred in this
Section 6.4.
Nothing in this Section 6.4 shall limit the power of the Corporation or
the Board of Directors to provide rights of indemnification and to make payment
and reimbursement of expenses, including attorneys' fees, to directors,
officers, employees, agents and other persons otherwise than pursuant to this
Section 6.4.
Section 6.5. Interested Directors; Quorum. No contract or transaction
between the Corporation and one or
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more of its directors or officers, or between the Corporation and any other
corporation, partnership, limited liability company, joint venture, trust,
association or other unincorporated organization or other entity in which one or
more of its directors or officers serve as directors, officers, trustees or in a
similar capacity or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or her or their
votes are counted for such purpose, if: (i) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; (ii) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by a vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of account
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs or any other information storage device,
provided that the records so kept can be converted into clearly legible form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
Section 6.7. Laws and Regulations; Close of Business. (a) For purposes of
these by-laws, any reference to a statute, rule or regulation of any
governmental body means such statute, rule or regulation (including any
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successor thereto) as the same may be amended from time to time.
(b) Any reference in these by-laws to the close of business on any day
shall be deemed to mean 5:00 P.M. New York time on such day, whether or not such
day is a business day.
Section 6.8. Amendment of By-Laws. These by-laws may be amended, modified
or repealed, and new by-laws may be adopted at any time, by the Board of
Directors. Stockholders of the Corporation may adopt additional by-laws and
amend, modify or repeal any by-law whether or not adopted by them, but only in
accordance with Article SIXTH of the certificate of incorporation.
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