Quarterly Report — Form 10-Q — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
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the Goldman Sachs Group, Inc.
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‘EX-3.2’ — Ex-3.2: 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 name of the Corporation is The Goldman Sachs Group, Inc. The date of filing of its original
certificate of incorporation with the Secretary of State of the State of Delaware was July 21,1998.
2. This Restated Certificate of Incorporation restates and integrates and does not further amend
the provisions of the certificate of incorporation of the Corporation as heretofore amended or
supplemented. There is no discrepancy between the provisions of this Restated Certificate of
Incorporation and the provisions of the certificate of incorporation of the Corporation as
heretofore amended or supplemented. This Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Section 245 of the General Corporation Law of the
State of Delaware. The text of the certificate of incorporation is hereby restated to read herein
as set forth in full:
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 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 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 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 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 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
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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 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.
(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.
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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:
(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 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 such series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
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(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 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 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 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 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 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 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 Restated Certificate of Incorporation or pursuant to the Delaware General Corporation Law
as then in effect.
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Pursuant to the authority conferred by this Article FOURTH upon the board of directors of the
Corporation and authority delegated by the board of directors to the Securities Issuance
Committee of the board of directors of the Corporation (the “Securities Issuance Committee”),
the Securities Issuance Committee created a series of shares of Preferred Stock designated as
Floating Rate Non-Cumulative Preferred Stock, Series A, by filing a certificate of designations
of the Corporation with the Secretary of State of the State of Delaware on April 22, 2005, and
the voting powers, designations, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of the
Corporation’s Floating Rate Non-Cumulative Preferred Stock, Series A, are set forth in Appendix
A hereto and are incorporated herein by reference.
Pursuant to the authority conferred by this Article FOURTH upon the board of directors of the
Corporation and authority delegated by the board of directors to the Securities Issuance
Committee, the Securities Issuance Committee created a series of shares of Preferred Stock
designated as 6.20% Non-Cumulative Preferred Stock, Series B, by filing a certificate of
designations of the Corporation with the Secretary of State of the State of Delaware on October28, 2005, and the voting powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or restrictions thereof,
of the Corporation’s 6.20% Non-Cumulative Preferred Stock, Series B, are set forth in Appendix
B hereto and are incorporated herein by reference.
Pursuant to the authority conferred by this Article FOURTH upon the board of directors of the
Corporation and authority delegated by the board of directors to the Securities Issuance
Committee, the Securities Issuance Committee created a series of shares of Preferred Stock
designated as Floating Rate Non-Cumulative Preferred Stock, Series C, by filing a certificate
of designations of the Corporation with the Secretary of State of the State of Delaware on
October 28, 2005, and the voting powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or restrictions thereof,
of the Corporation’s Floating Rate Non-Cumulative Preferred Stock, Series C, are set forth in
Appendix C hereto and are incorporated herein by reference.
Pursuant to the authority conferred by this Article FOURTH upon the board of directors of the
Corporation and authority delegated by the board of directors to the Securities Issuance
Committee, the Securities Issuance Committee created a series of shares of Preferred Stock
designated as Floating Rate Non-Cumulative Preferred Stock, Series D, by filing a certificate
of designations of the Corporation with the Secretary of State of the State of Delaware on May23, 2006, and the voting powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or restrictions thereof,
of the Corporation’s Floating Rate Non-Cumulative Preferred Stock, Series D, are set forth in
Appendix D hereto and are incorporated herein by reference.
Pursuant to the authority conferred by this Article FOURTH upon the board of directors of the
Corporation and authority delegated by the board of directors to the
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Securities Issuance Committee, the Securities Issuance Committee created a series of shares of
Preferred Stock designated as Perpetual Non-Cumulative Preferred Stock, Series E, by filing a
certificate of designations of the Corporation with the Secretary of State of the State of
Delaware on May 14, 2007, and the voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications, limitations or
restrictions thereof, of the Corporation’s Perpetual Non-Cumulative Preferred Stock, Series E,
are set forth in Appendix E hereto and are incorporated herein by reference.
Pursuant to the authority conferred by this Article FOURTH upon the board of directors of the
Corporation and authority delegated by the board of directors to the Securities Issuance
Committee, the Securities Issuance Committee created a series of shares of Preferred Stock
designated as Perpetual Non-Cumulative Preferred Stock, Series F, by filing a certificate of
designations of the Corporation with the Secretary of State of the State of Delaware on May 14,2007, and the voting powers, designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions thereof, of the
Corporation’s Perpetual Non-Cumulative Preferred Stock, Series F, are set forth in Appendix F
hereto and are incorporated herein by reference.
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 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 absent an assumption by another party or parties thereto of the
obligations of the Corporation under such options, warrants or other rights;
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(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. [Reserved]
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 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 or, as and to the extent required by the by-laws of
the Corporation, by the Secretary of the Corporation upon the written request of the holders of
record of not less than 25% of the voting power of all outstanding shares of Common Stock of
the Corporation, such voting power to be calculated and determined in the manner specified, and
with any limitations as may be set forth, in the Corporation’s by-laws (the “Requisite
Percent”). Each special meeting shall 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 by the affirmative vote of not less than a majority of shares
present in person or represented by proxy at the meeting and entitled to vote on such matter,
with all shares of Common Stock of the Corporation and other stock of the Corporation entitled
to vote on such matter considered for this purpose as a single class; for purposes of this
sentence votes cast “for” or “against” and “abstentions” with respect to such matter shall be
counted as shares of stock of the Corporation entitled to vote on such matter, while “broker
nonvotes” (or other shares of stock of the Corporation similarly not entitled to vote) shall
not be counted as shares
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entitled to vote on such matter. 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 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 number of directors of the Corporation shall be fixed only by resolution of the
board of directors of the Corporation from time to time. Each director who is serving as a
director on the date of this Restated Certificate of Incorporation shall hold office until the
next annual meeting of stockholders after such date and until his or her successor has been
duly elected and qualified, notwithstanding that such director may have been elected for a term
that extended beyond the date of such next annual meeting of stockholders. At each annual
meeting of stockholders after the date of this Restated Certificate of Incorporation, directors
elected at such annual meeting shall hold office until the next annual meeting of stockholders
and until their successors have been duly elected and qualified.
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 or classes of stock or series thereof are expressly entitled by
this 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 annual meeting of stockholders, 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 and (ii) any director or directors elected by such 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:
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(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;
(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 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. [Reserved]
TWELFTH. A director of the Corporation shall not be liable to the Corporation or its
stockholders for 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
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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.
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 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 Restated Certificate of Incorporation to be
signed and attested by its duly authorized officer on this 6th day of May, 2011.
FLOATING RATE NON-CUMULATIVE PREFERRED STOCK, SERIES A
OF
THE GOLDMAN SACHS GROUP, INC.
THE GOLDMAN SACHS GROUP, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of
Sections 103 and 151 thereof, DOES HEREBY CERTIFY:
The Securities Issuance Committee (the “Committee”) of the board of directors of the
Corporation (the “Board of Directors”), in accordance with the resolutions of the Board of
Directors dated April 6, 2005, the provisions of the amended and restated certificate of
incorporation and bylaws of the Corporation and applicable law, by unanimous written consent dated
April 18, 2005, adopted the following resolution creating a series of 50,000 shares of Preferred
Stock of the Corporation designated as “Floating Rate Non-Cumulative Preferred Stock, Series A”.
RESOLVED, that pursuant to the authority vested in the Committee and in accordance with the
resolutions of the Board of Directors dated April 6, 2005, the provisions of the amended and
restated certificate of incorporation and bylaws of the Corporation and applicable law, a series of
Preferred Stock, par value $.01 per share, of the Corporation be and hereby is created, and that
the designation and number of shares of such series, and the voting and other powers, preferences
and relative, participating, optional or other rights, and the qualifications, limitations and
restrictions thereof, of the shares of such series, are as follows:
Section 1. Designation. The distinctive serial designation of such series of Preferred Stock
is “Floating Rate Non-Cumulative Preferred Stock, Series A” (“Series A”). Each share of Series A
shall be identical in all respects to every other share of Series A, except as to the respective
dates from which dividends thereon shall accrue, to the extent such dates may differ as permitted
pursuant to Section 4(a) below.
Section 2. Number of Shares. The authorized number of shares of Series A shall be 50,000.
Shares of Series A that are redeemed, purchased or otherwise acquired by the Corporation, or
converted into another series of Preferred Stock, shall be cancelled and shall revert to authorized
but unissued shares of Series A.
Section 3. Definitions. As used herein with respect to Series A:
(a) “Board of Directors” means the board of directors of the Corporation.
(b) “ByLaws” means the amended and restated bylaws of the Corporation, as they may be
amended from time to time.
(c) “Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or
Friday and is not a day on which banking institutions in New York City generally are
authorized or obligated by law, regulation or executive order to close.
(d) “Calculation Agent” means, at any time, the person or entity appointed by the
Corporation and serving as such agent at such time. The Corporation may terminate any such
appointment and may appoint a successor agent at any time and from time to time, provided
that the Corporation shall use its best efforts to ensure that there is, at all relevant
times when the Series A is outstanding, a person or entity appointed and serving as such
agent. The Calculation Agent may be a person or entity affiliated with the Corporation.
(e) “Certificate of Designations” means this Certificate of Designations relating to
the Series A, as it may be amended from time to time.
(f) “Certification of Incorporation” shall mean the amended and restated certificate
of incorporation of the Corporation, as it may be amended from time to time, and shall
include this Certificate of Designations.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the
Corporation.
(h) “Junior Stock” means the Common Stock and any other class or series of stock of
the Corporation (other than Series A) that ranks junior to Series A either or both as to
the payment of dividends and/or as to the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
(i) “London Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday
or Friday and is a day on which dealings in U.S. dollars are transacted in the London
interbank market.
(j) “Moneyline Telerate Page” means the display on Moneyline Telerate, Inc., or any
successor service, on the page or pages specified in Section 4 below or any replacement
page or pages on that service.
(k) “Parity Stock” means any class or series of stock of the Corporation (other than
Series A) that ranks equally with Series A both in the payment of dividends and in the
distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(l) “Preferred Stock” means any and all series of Preferred Stock, having a par value
of $0.01 per share, of the Corporation, including the Series A.
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(m) “Representative Amount” means, at any time, an amount that, in the Calculation
Agent’s judgment, is representative of a single transaction in the relevant market at the
relevant time.
(n) “Voting Preferred Stock” means, with regard to any election or removal of a
Preferred Stock Director (as defined in Section 8(b) below) or any other matter as to which
the holders of Series A are entitled to vote as specified in Section 8 of this Certificate
of Designations, any and all series of Preferred Stock (other than Series A) that rank
equally with Series A either as to the payment of dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Corporation and upon which like
voting rights have been conferred and are exercisable with respect to such matter.
Section 4. Dividends.
(a) Rate. Holders of Series A shall be entitled to receive, when, as and if declared by the
Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors) out of funds legally available for the payment of dividends under Delaware law,
non-cumulative cash dividends at the rate determined as set forth below in this Section (4) applied
to the liquidation preference amount of $25,000 per share of Series A. Such dividends shall be
payable quarterly in arrears (as provided below in this Section 4(a)), but only when, as and if
declared by the Board of Directors or the Committee (or another duly authorized committee of the
Board of Directors), on February 10, May 10, August 10 and November 10 (“Dividend Payment Dates”),
commencing on August 10, 2005; provided that if any such Dividend Payment Date would otherwise
occur on a day that is not a Business Day, such Dividend Payment Date shall instead be (and any
dividend payable on Series A on such Dividend Payment Date shall instead be payable on) the
immediately succeeding Business Day, unless such immediately succeeding Business Day falls in the
next calendar month, in which case such Dividend Payment Date shall instead be (and any such
dividend shall instead be payable on) the immediately preceding Business Day. Dividends on Series A
shall not be cumulative; holders of Series A shall not be entitled to receive any dividends not
declared by the Board of Directors or the Committee (or another duly authorized committee of the
Board of Directors) and no interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend not so declared.
Dividends that are payable on Series A on any Dividend Payment Date will be payable to holders
of record of Series A as they appear on the stock register of the Corporation on the applicable
record date, which shall be the 15th calendar day before such Dividend Payment Date or such other
record date fixed by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) that is not more than 60 nor less than 10 days prior to such Dividend
Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be
a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a “Dividend Period”) shall commence on and include a Dividend Payment
Date (other than the initial Dividend Period, which shall commence
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on and include the date of original issue of the Series A, provided that, for any share of
Series A issued after such original issue date, the initial Dividend Period for such shares may
commence on and include such other date as the Board of Directors or the Committee (or another duly
authorized committee of the Board of Directors) shall determine and publicly disclose) and shall
end on and include the calendar day next preceding the next Dividend Payment Date. Dividends
payable on the Series A in respect of any Dividend Period shall be computed by the Calculation
Agent on the basis of a 360-day year and the actual number of days elapsed in such Dividend Period.
Dividends payable in respect of a Dividend Period shall be payable in arrears - i.e., on the
first Dividend Payment Date after such Dividend Period.
The dividend rate on the Series A, for each Dividend Period, shall be a rate per annum equal
to the greater of (1) 0.75% above LIBOR (as defined below) for such Dividend Period and (2) 3.75%.
LIBOR, with respect to any Dividend Period, means the offered rate expressed as a percentage per
annum for three-month deposits in U.S. dollars on the first day of such Dividend Period, as that
rate appears on Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the second London
Business Day immediately preceding the first day of such Dividend Period.
If the rate described in the preceding paragraph does not appear on Moneyline Telerate Page
3750, LIBOR shall be determined on the basis of the rates, at approximately 11:00 A.M., London
time, on the second London Business Day immediately preceding the first day of such Dividend
Period, at which deposits of the following kind are offered to prime banks in the London interbank
market by four major banks in that market selected by the Calculation Agent: three-month deposits
in U.S. dollars, beginning on the first day of such Dividend Period, and in a Representative
Amount. The Calculation Agent shall request the principal London office of each of these banks to
provide a quotation of its rate at approximately 11:00 A.M., London time. If at least two
quotations are provided, LIBOR for such Dividend Period shall be the arithmetic mean of such
quotations.
If fewer than two quotations are provided as described in the preceding paragraph, LIBOR for
such Dividend Period shall be the arithmetic mean of the rates for loans of the following kind to
leading European banks quoted, at approximately 11:00 A.M. New York City time, on the second London
Business Day immediately preceding the first day of such Dividend Period, by three major banks in
New York City selected by the Calculation Agent: three-month loans of U.S. dollars, beginning on
the first day of such Dividend Period, and in a Representative Amount.
If fewer than three banks selected by the Calculation Agent are quoting as described in the
preceding paragraph, LIBOR for such Dividend Period shall be LIBOR in effect for the prior Dividend
Period.
The Calculation Agent’s determination of any dividend rate, and its calculation of the amount
of dividends for any Dividend Period, will be maintained on file at the Corporation’s principal
offices and will be available to any stockholder upon request and will be final and binding in the
absence of manifest error.
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Holders of Series A shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and payable on the Series A as
specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(b) Priority of Dividends. So long as any share of Series A remains outstanding, no dividend
shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than a
dividend payable solely in Junior Stock), and no Common Stock or other Junior Stock shall be
purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior
Stock, or the exchange or conversion of one share of Junior Stock for or into another share of
Junior Stock and other than through the use of the proceeds of a substantially contemporaneous sale
of Junior Stock) during a Dividend Period, unless the full dividends for the latest completed
Dividend Period on all outstanding shares of Series A have been declared and paid (or declared and
a sum sufficient for the payment thereof has been set aside). The foregoing provision shall not
restrict the ability of Goldman, Sachs & Co., or any other affiliate of the Corporation, to engage
in any market-making transactions in Junior Stock in the ordinary course of business.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside)
on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates
different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend
Period) in full upon the Series A and any shares of Parity Stock, all dividends declared on the
Series A and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of
parity stock having dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend Payment Date) shall be
declared pro rata so that the respective amounts of such dividends shall bear the same ratio to
each other as all accrued but unpaid dividends per share on the Series A and all Parity Stock
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) bear to each other.
Subject to the foregoing, such dividends (payable in cash, securities or other property) as
may be determined by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) may be declared and paid on any securities, including Common Stock and
other Junior Stock, from time to time out of any funds legally available for such payment, and the
Series A shall not be entitled to participate in any such dividends.
Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series A
shall be entitled to receive, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to
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stockholders of the Corporation, and after satisfaction of all liabilities and obligations to
creditors of the Corporation, before any distribution of such assets or proceeds is made to or set
aside for the holders of Common Stock and any other stock of the Corporation ranking junior to the
Series A as to such distribution, in full an amount equal to $25,000 per share (the “Series A
Liquidation Amount”), together with an amount equal to all dividends (if any) that have been
declared but not paid prior to the date of payment of such distribution (but without any amount in
respect of dividends that have not been declared prior to such payment date).
(b) Partial Payment. If in any distribution described in Section 5(a) above the assets of the
Corporation or proceeds thereof are not sufficient to pay the Liquidation Preferences (as defined
below) in full to all holders of Series A and all holders of any stock of the Corporation ranking
equally with the Series A as to such distribution, the amounts paid to the holders of Series A and
to the holders of all such other stock shall be paid pro rata in accordance with the respective
aggregate Liquidation Preferences of the holders of Series A and the holders of all such other
stock. In any such distribution, the “Liquidation Preference” of any holder of stock of the
Corporation shall mean the amount otherwise payable to such holder in such distribution (assuming
no limitation on the assets of the Corporation available for such distribution), including an
amount equal to any declared but unpaid dividends (and, in the case of any holder of stock other
than Series A and on which dividends accrue on a cumulative basis, an amount equal to any unpaid,
accrued, cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all
holders of Series A, the holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their respective rights and
preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5,
the merger or consolidation of the Corporation with any other corporation or other entity,
including a merger or consolidation in which the holders of Series A receive cash, securities or
other property for their shares, or the sale, lease or exchange (for cash, securities or other
property) of all or substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
(a) Optional Redemption. The Series A may not be redeemed by the Corporation prior to April25, 2010. On or after April 25, 2010, the Corporation, at its option, may redeem, in whole at any
time or in part from time to time, the shares of Series A at the time outstanding, upon notice
given as provided in Section 6(c) below, at a redemption price equal to $25,000 per share, together
(except as otherwise provided herein below) with an amount equal to any dividends that have been
declared but not paid prior to the redemption date (but with no amount in respect of any dividends
that have not been declared prior to such date). The redemption price for any shares of Series A
shall be payable on the redemption date to the holder of such shares against surrender of the
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certificate(s) evidencing such shares to the Corporation or its agent. Any declared but
unpaid dividends payable on a redemption date that occurs subsequent to the Dividend Record Date
for a Dividend Period shall not be paid to the holder entitled to receive the redemption price on
the redemption date, but rather shall be paid to the holder of record of the redeemed shares on
such Dividend Record Date relating to the Dividend Payment Date as provided in Section 4 above.
(b) No Sinking Fund. The Series A will not be subject to any mandatory redemption, sinking
fund or other similar provisions. Holders of Series A will have no right to require redemption of
any shares of Series A.
(c) Notice of Redemption. Notice of every redemption of shares of Series A shall be given by
first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses appearing on the books of the Corporation. Such mailing shall
be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice
mailed as provided in this Subsection shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice, but failure duly to give such notice by mail, or
any defect in such notice or in the mailing thereof, to any holder of shares of Series A designated
for redemption shall not affect the validity of the proceedings for the redemption of any other
shares of Series A. Notwithstanding the foregoing, if the Series A or any depositary shares
representing interests in the Series A are issued in book-entry form through The Depository Trust
Company or any other similar facility, notice of redemption may be given to the holders of Series A
at such time and in any manner permitted by such facility. Each such notice given to a holder
shall state: (1) the redemption date; (2) the number of shares of Series A to be redeemed and, if
less than all the shares held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the redemption price; and (4) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series A at
the time outstanding, the shares to be redeemed shall be selected either pro rata or in such other
manner as the Corporation may determine to be fair and equitable. Subject to the provisions
hereof, the Corporation shall have full power and authority to prescribe the terms and conditions
upon which shares of Series A shall be redeemed from time to time. If fewer than all the shares
represented by any certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or
before the redemption date specified in the notice all funds necessary for the redemption have been
set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata
benefit of the holders of the shares called for redemption, so as to be and continue to be
available therefor, then, notwithstanding that any certificate for any share so called for
redemption has not been surrendered for cancellation, on and after the redemption date dividends
shall cease to accrue on all shares so called for redemption, all shares so called for redemption
shall no longer be deemed
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outstanding and all rights with respect to such shares shall forthwith on such redemption date
cease and terminate, except only the right of the holders thereof to receive the amount payable on
such redemption, without interest. Any funds unclaimed at the end of three years from the
redemption date shall, to the extent permitted by law, be released to the Corporation, after which
time the holders of the shares so called for redemption shall look only to the Corporation for
payment of the redemption price of such shares.
Section 7. Conversion Upon Regulatory Changes. If both (i) and (ii) below occur:
(i) after the date of the issuance of the Series A, the Corporation (by election or
otherwise) becomes subject to any law, rule, regulation or guidance (together,
“Regulations”) relating to its capital adequacy, which Regulation (x) modifies the existing
requirements for treatment as Allowable Capital (as defined under the Securities and
Exchange Commission rules relating to consolidated supervised entities as in effect from
time to time), (y) provides for a type or level of capital characterized as “Tier 1” or its
equivalent pursuant to Regulations of any governmental agency, authority or other body
having regulatory jurisdiction over the Corporation (or any of its subsidiaries or
consolidated affiliates) and implementing the capital standards published by the Basel
Committee on Banking Supervision, the Securities and Exchange Commission, the Board of
Governors of the Federal Reserve System or any other United States national governmental
agency, authority or other body, or any other applicable regime based on capital standards
published by the Basel Committee on Banking Supervision or its successor, or (z) provides
for a type or level of capital that in the judgment of the Corporation (after consultation
with legal counsel of recognized standing) is substantially equivalent to such “Tier 1”
capital (such capital described in either (y) or (z) above is referred to below as “Tier 1
Capital Equivalent”), and
(ii) the Corporation affirmatively elects to qualify the Series A for treatment as
Allowable Capital or Tier 1 Capital Equivalent without any sublimit or other quantitative
restriction on the inclusion of the Series A in Allowable Capital or Tier 1 Capital
Equivalent (other than any limitation the Corporation elects to accept and any limitation
requiring that common equity or a specified form of common equity constitute the dominant
form of Allowable Capital or Tier 1 Capital Equivalent) under such Regulations,
then, upon such affirmative election, the Series A shall be convertible at the Corporation’s option
into a new series of Preferred Stock having terms and provisions substantially identical to those
of the Series A, except that such new series may have such additional or modified rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, as are
necessary in the judgment of the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors) (after consultation with legal counsel of recognized standing)
to comply with the Required Unrestricted Capital Provisions (as defined below), provided that the
Corporation will not cause any such conversion unless the Board of Directors or the Committee (or
another duly authorized committee of the Board of Directors) determines that the rights,
preferences, privileges and
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voting powers, and the qualifications, limitations and restrictions thereof, of such new series of
Preferred Stock, taken as a whole, are not materially less favorable to the holders thereof than
the rights, preferences, privileges and voting powers, and the qualifications, limitations and
restrictions thereof, of the Series A, taken as a whole.
As used above, the term “Required Unrestricted Capital Provisions” means such terms and
provisions as are, in the judgment of the Corporation (after consultation with counsel of
recognized standing), required for preferred stock to be treated as Allowable Capital or Tier 1
Capital Equivalent, as applicable, without any sublimit or other quantitative restriction on the
inclusion of such preferred stock in Allowable Capital or Tier 1 Capital Equivalent, as applicable
(other than any limitation the Corporation elects to accept and any limitation requiring that
common equity or a specified form of common equity constitute the dominant form of Allowable
Capital or Tier 1 Capital Equivalent) pursuant to the applicable Regulations.
The Corporation shall provide notice to the holders of Series A of any election to qualify the
Series A for Allowable Capital or Tier 1 Capital Equivalent treatment and of any determination to
convert the Series A into a new series of Preferred Stock pursuant to the terms of this Section 7,
promptly upon the effectiveness of any such election or determination. A copy of such notice and of
the relevant Regulations shall be maintained on file at the principal offices of the Corporation
and, upon request, will be made available to any stockholder of the Corporation. Any conversion of
the Series A pursuant to this Section 7 shall be effected pursuant to such procedures as the
Corporation may determine and publicly disclose.
Except as specified in this Section 7, holders of Series A shares shall have no right to
exchange or convert such shares into any other securities.
Section 8. Voting Rights.
(a) General. The holders of Series A shall not have any voting rights except as set forth
below or as otherwise from to time required by law.
(b) Right To Elect Two Directors Upon Nonpayment Events. If and whenever dividends on any
shares of Series A shall not have been declared and paid for at least six Dividend Periods, whether
or not consecutive (a “Nonpayment Event”), the number of directors then constituting the Board of
Directors shall automatically be increased by two and the holders of Series A, together with the
holders of any outstanding shares of Voting Preferred Stock, voting together as a single class,
shall be entitled to elect the two additional directors (the “Preferred Stock Directors”), provided
that it shall be a qualification for election for any such Preferred Stock Director that the
election of such director shall not cause the Corporation to violate the corporate governance
requirement of the New York Stock Exchange (or any other securities exchange or other trading
facility on which securities of the Corporation may then be listed or traded) that listed or traded
companies must have a majority of independent directors.
In the event that the holders of the Series A, and such other holders of Voting Preferred
Stock, shall be entitled to vote for the election of the Preferred Stock
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Directors following a Nonpayment Event, such directors shall be initially elected following
such Nonpayment Event only at a special meeting called at the request of the holders of record of
at least 20% of the Series A or of any other series of Voting Preferred Stock then outstanding
(unless such request for a special meeting is received less than 90 days before the date fixed for
the next annual or special meeting of the stockholders of the Corporation, in which event such
election shall be held only at such next annual or special meeting of stockholders), and at each
subsequent annual meeting of stockholders of the Corporation. Such request to call a special
meeting for the initial election of the Preferred Stock Directors after a Nonpayment Event shall be
made by written notice, signed by the requisite holders of Series A or Voting Preferred Stock, and
delivered to the Secretary of the Corporation in such manner as provided for in Section 10 below,
or as may otherwise be required by law.
When dividends have been paid (or declared and a sum sufficient for payment thereof set aside)
in full on the Series A for at least four Dividend Periods (whether or not consecutive) after a
Nonpayment Event, then the right of the holders of Series A to elect the Preferred Stock Directors
shall cease (but subject always to revesting of such voting rights in the case of any future
Nonpayment Event), and, if and when any rights of holders of Series A and Voting Preferred Stock to
elect the Preferred Stock Directors shall have ceased, the terms of office of all the Preferred
Stock Directors shall forthwith terminate and the number of directors constituting the Board of
Directors shall automatically be reduced accordingly.
Any Preferred Stock Director may be removed at any time without cause by the holders of record
of a majority of the outstanding shares of the Series A and Voting Preferred Stock, when they have
the voting rights described above (voting together as a single class). So long as a Nonpayment
Event shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to
the initial election of Preferred Stock Directors after a Nonpayment Event) may be filled by the
written consent of the Preferred Stock Director remaining in office, or if none remains in office,
by a vote of the holders of record of a majority of the outstanding shares of the Series A and all
Voting Preferred Stock, when they have the voting rights described above (voting together as a
single class). Any such vote of stockholders to remove, or to fill a vacancy in the office of, a
Preferred Stock Director may be taken only at a special meeting of such stockholders, called as
provided above for an initial election of Preferred Stock Director after a Nonpayment Event (unless
such request is received less than 90 days before the date fixed for the next annual or special
meeting of the stockholders, in which event such election shall be held at such next annual or
special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter that shall come before the Board of Directors for a vote. Each Preferred
Stock Director elected at any special meeting of stockholders or by written consent of the other
Preferred Stock Director shall hold office until the next annual meeting of the stockholders if
such office shall not have previously terminated as above provided.
(c) Other Voting Rights. So long as any shares of Series A are outstanding, in addition to
any other vote or consent of stockholders required by law or by the Certificate of Incorporation,
the vote or consent of the holders of at least 66⅔% of the
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shares of Series A and any Voting Preferred Stock at the time outstanding and entitled to vote
thereon, voting together as a single class, given in person or by proxy, either in writing without
a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Certificate of
Incorporation to authorize or create, or increase the authorized amount of, any shares of
any class or series of capital stock of the Corporation ranking senior to the Series A with
respect to either or both the payment of dividends and/or the distribution of assets on any
liquidation, dissolution or winding up of the Corporation;
(ii) Amendment of Series A. Any amendment, alteration or repeal of any provision of
the Certificate of Incorporation so as to materially and adversely affect the special
rights, preferences, privileges or voting powers of the Series A, taken as a whole; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Any
consummation of a binding share exchange or reclassification involving the Series A, or of
a merger or consolidation of the Corporation with another corporation or other entity,
unless in each case (x) the shares of Series A remain outstanding or, in the case of any
such merger or consolidation with respect to which the Corporation is not the surviving or
resulting entity, are converted into or exchanged for preference securities of the
surviving or resulting entity or its ultimate parent, and (y) such shares remaining
outstanding or such preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, taken
as a whole, as are not materially less favorable to the holders thereof than the rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, of the
Series A immediately prior to such consummation, taken as a whole;
provided, however, that for all purposes of this Section 8(c), any increase in the amount of the
authorized or issued Series A or authorized Preferred Stock, or the creation and issuance, or an
increase in the authorized or issued amount, of any other series of Preferred Stock ranking equally
with and/or junior to the Series A with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative) and/or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation will not be deemed to adversely affect the special rights,
preferences, privileges or voting powers of the Series A. In addition, any conversion of the
Series A pursuant to Section 7 above shall not be deemed to adversely affect the rights,
preferences, privileges and voting powers of the Series A.
If any amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 7(c) would adversely affect the Series A and one or more
but not all other series of Preferred Stock, then only the Series A and such series of Preferred
Stock as are adversely affected by and entitled to vote on the matter shall vote on the matter
together as a single class (in lieu of all other series of Preferred Stock).
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(d) Changes for Clarification. Without the consent of the holders of the Series A, so long as
such action does not adversely affect the special rights, preferences, privileges and voting
powers, and limitations and restrictions thereof, of the Series A, the Corporation may amend,
alter, supplement or repeal any terms of the Series A:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this
Certificate of Designations that may be defective or inconsistent; or
(ii) to make any provision with respect to matters or questions arising with respect to the
Series A that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision for Redemption. No vote or consent of the holders of Series A
shall be required pursuant to Section 8(b), (c) or (d) above if, at or prior to the time when any
such vote or consent would otherwise be required pursuant to such Section, all outstanding shares
of Series A shall have been redeemed, or shall have been called for redemption upon proper notice
and sufficient funds shall have been set aside for such redemption, in each case pursuant to
Section 6 above.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting
any meeting of the holders of Series A (including, without limitation, the fixing of a record date
in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of
written consents and any other aspect or matter with regard to such a meeting or such consents
shall be governed by any rules the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors), in its discretion, may adopt from time to time, which rules
and procedures shall conform to the requirements of the Certificate of Incorporation, the Bylaws,
applicable law and any national securities exchange or other trading facility on which the Series A
is listed or traded at the time. Whether the vote or consent of the holders of a plurality,
majority or other portion of the shares of Series A and any Voting Preferred Stock has been cast or
given on any matter on which the holders of shares of Series A are entitled to vote shall be
determined by the Corporation by reference to the specified liquidation amounts of the shares voted
or covered by the consent.
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Section 9. Record Holders. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for the Series A may deem and treat the record holder of any share of Series
A as the true and lawful owner thereof for all purposes, and neither the Corporation nor such
transfer agent shall be affected by any notice to the contrary.
Section 10. Notices. All notices or communications in respect of Series A shall be
sufficiently given if given in writing and delivered in person or by first class mail, postage
prepaid, or if given in such other manner as may be permitted in this Certificate of Designations,
in the Certificate of Incorporation or Bylaws or by applicable law.
Section 11. No Preemptive Rights. No share of Series A shall have any rights of preemption
whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or
granted with respect thereto, regardless of how such securities, or such warrants, rights or
options, may be designated, issued or granted.
Section 12. Other Rights. The shares of Series A shall not have any voting powers,
preferences or relative, participating, optional or other special rights, or qualifications,
limitations or restrictions thereof, other than as set forth herein or in the Certificate of
Incorporation or as provided by applicable law.
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Appendix B
CERTIFICATE OF DESIGNATIONS
OF
6.20% NON-CUMULATIVE PREFERRED STOCK, SERIES B
OF
THE GOLDMAN SACHS GROUP, INC.
THE GOLDMAN SACHS GROUP, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of
Sections 103 and 151 thereof, DOES HEREBY CERTIFY:
The Securities Issuance Committee (the “Committee”) of the board of directors of the
Corporation (the “Board of Directors”), in accordance with the resolutions of the Board of
Directors dated September 16, 2005, the provisions of the amended and restated certificate of
incorporation and bylaws of the Corporation and applicable law, by unanimous written consent dated
October 25, 2005, adopted the following resolution creating a series of 50,000 shares of Preferred
Stock of the Corporation designated as “6.20% Non-Cumulative Preferred Stock, Series B”.
RESOLVED, that pursuant to the authority vested in the Committee and in accordance with the
resolutions of the Board of Directors dated September 16, 2005, the provisions of the amended and
restated certificate of incorporation and bylaws of the Corporation and applicable law, a series of
Preferred Stock, par value $.01 per share, of the Corporation be and hereby is created, and that
the designation and number of shares of such series, and the voting and other powers, preferences
and relative, participating, optional or other rights, and the qualifications, limitations and
restrictions thereof, of the shares of such series, are as follows:
Section 1. Designation. The distinctive serial designation of such series of Preferred Stock
is “6.20% Non-Cumulative Preferred Stock, Series B” (“Series B”). Each share of Series B shall be
identical in all respects to every other share of Series B, except as to the respective dates from
which dividends thereon shall accrue, to the extent such dates may differ as permitted pursuant to
Section 4(a) below.
Section 2. Number of Shares. The authorized number of shares of Series B shall be 50,000.
Shares of Series B that are redeemed, purchased or otherwise acquired by the Corporation, or
converted into another series of Preferred Stock, shall be cancelled and shall revert to authorized
but unissued shares of Series B.
Section 3. Definitions. As used herein with respect to Series B:
(a) “Board of Directors” means the board of directors of the Corporation.
(b) “ByLaws” means the amended and restated bylaws of the Corporation, as they may be
amended from time to time.
(c) “Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or
Friday and is not a day on which banking institutions in New York City generally are
authorized or obligated by law, regulation or executive order to close.
(d) “Certificate of Designations” means this Certificate of Designations relating to
the Series B, as it may be amended from time to time.
(e) “Certification of Incorporation” shall mean the amended and restated certificate
of incorporation of the Corporation, as it may be amended from time to time, and shall
include this Certificate of Designations.
(f) “Common Stock” means the common stock, par value $0.01 per share, of the
Corporation.
(g) “Junior Stock” means the Common Stock and any other class or series of stock of
the Corporation (other than Series B) that ranks junior to Series B either or both as to
the payment of dividends and/or as to the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
(h) “Parity Stock” means any class or series of stock of the Corporation (other than
Series B) that ranks equally with Series B both in the payment of dividends and in the
distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(i) “Preferred Stock” means any and all series of Preferred Stock, having a par value
of $0.01 per share, of the Corporation, including the Series B.
(j) “Voting Preferred Stock” means, with regard to any election or removal of a
Preferred Stock Director (as defined in Section 8(b) below) or any other matter as to which
the holders of Series B are entitled to vote as specified in Section 8 of this Certificate
of Designations, any and all series of Preferred Stock (other than Series B) that rank
equally with Series B either as to the payment of dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Corporation and upon which like
voting rights have been conferred and are exercisable with respect to such matter.
Section 4. Dividends.
(a) Rate. Holders of Series B shall be entitled to receive, when, as and if declared by the
Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors) out of funds legally available for the payment of dividends under Delaware law,
non-cumulative cash dividends at a rate per annum of 6.20% applied to the liquidation preference
amount of $25,000 per share of Series B. Such dividends shall be payable quarterly in arrears (as
provided below in this Section 4(a)), but
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only when, as and if declared by the Board of Directors or the Committee (or another duly
authorized committee of the Board of Directors), on February 10, May 10, August 10 and November 10
(“Dividend Payment Dates”), commencing on February 10, 2006; provided that if any such Dividend
Payment Date would otherwise occur on a day that is not a Business Day, such Dividend Payment Date
shall instead be (and any dividend payable on Series B on such Dividend Payment Date shall instead
be payable on) the immediately succeeding Business Day. Dividends on Series B shall not be
cumulative; holders of Series B shall not be entitled to receive any dividends not declared by the
Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors) and no interest, or sum of money in lieu of interest, shall be payable in respect of any
dividend not so declared.
Dividends that are payable on Series B on any Dividend Payment Date will be payable to holders
of record of Series B as they appear on the stock register of the Corporation on the applicable
record date, which shall be the 15th calendar day before such Dividend Payment Date or such other
record date fixed by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) that is not more than 60 nor less than 10 days prior to such Dividend
Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be
a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a “Dividend Period”) shall commence on and include a Dividend Payment
Date (other than the initial Dividend Period, which shall commence on and include the date of
original issue of the Series B, provided that, for any share of Series B issued after such original
issue date, the initial Dividend Period for such shares may commence on and include such other date
as the Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors) shall determine and publicly disclose) and shall end on and include the calendar day
next preceding the next Dividend Payment Date. Dividends payable on the Series B in respect of any
Dividend Period shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. Dividends payable in respect of a Dividend Period shall be payable in arrears -
i.e., on the first Dividend Payment Date after such Dividend Period.
Holders of Series B shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and payable on the Series B as
specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(b) Priority of Dividends. So long as any share of Series B remains outstanding, no dividend
shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than a
dividend payable solely in Junior Stock), and no Common Stock or other Junior Stock shall be
purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior
Stock, or the exchange or conversion of one share of Junior Stock for or into another share of
Junior Stock and other than through the use of the proceeds of a substantially contemporaneous sale
of Junior Stock) during a Dividend Period, unless the full dividends for the latest completed
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Dividend Period on all outstanding shares of Series B have been declared and paid (or declared
and a sum sufficient for the payment thereof has been set aside). The foregoing provision shall
not restrict the ability of Goldman, Sachs & Co., or any other affiliate of the Corporation, to
engage in any market-making transactions in Junior Stock in the ordinary course of business.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside)
on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates
different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend
Period) in full upon the Series B and any shares of Parity Stock, all dividends declared on the
Series B and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of
parity stock having dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend Payment Date) shall be
declared pro rata so that the respective amounts of such dividends shall bear the same ratio to
each other as all accrued but unpaid dividends per share on the Series B and all Parity Stock
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) bear to each other.
Subject to the foregoing, such dividends (payable in cash, securities or other property) as
may be determined by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) may be declared and paid on any securities, including Common Stock and
other Junior Stock, from time to time out of any funds legally available for such payment, and the
Series B shall not be entitled to participate in any such dividends.
Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series B
shall be entitled to receive, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to stockholders of the Corporation, and after
satisfaction of all liabilities and obligations to creditors of the Corporation, before any
distribution of such assets or proceeds is made to or set aside for the holders of Common Stock and
any other stock of the Corporation ranking junior to the Series B as to such distribution, in full
an amount equal to $25,000 per share (the “Series B Liquidation Amount”), together with an amount
equal to all dividends (if any) that have been declared but not paid prior to the date of payment
of such distribution (but without any amount in respect of dividends that have not been declared
prior to such payment date).
(b) Partial Payment. If in any distribution described in Section 5(a) above the assets of the
Corporation or proceeds thereof are not sufficient to pay the Liquidation Preferences (as defined
below) in full to all holders of Series B and all holders of any stock of the Corporation ranking
equally with the Series B as to such distribution, the amounts paid to the holders of Series B and
to the holders of all such other stock shall
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be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the
holders of Series B and the holders of all such other stock. In any such distribution, the
“Liquidation Preference” of any holder of stock of the Corporation shall mean the amount otherwise
payable to such holder in such distribution (assuming no limitation on the assets of the
Corporation available for such distribution), including an amount equal to any declared but unpaid
dividends (and, in the case of any holder of stock other than Series B and on which dividends
accrue on a cumulative basis, an amount equal to any unpaid, accrued, cumulative dividends, whether
or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all
holders of Series B, the holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their respective rights and
preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5,
the merger or consolidation of the Corporation with any other corporation or other entity,
including a merger or consolidation in which the holders of Series B receive cash, securities or
other property for their shares, or the sale, lease or exchange (for cash, securities or other
property) of all or substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
(a) Optional Redemption. The Series B may not be redeemed by the Corporation prior to October31, 2010. On or after October 31, 2010, the Corporation, at its option, may redeem, in whole at
any time or in part from time to time, the shares of Series B at the time outstanding, upon notice
given as provided in Section 6(c) below, at a redemption price equal to $25,000 per share, together
(except as otherwise provided herein below) with an amount equal to any dividends that have been
declared but not paid prior to the redemption date (but with no amount in respect of any dividends
that have not been declared prior to such date). The redemption price for any shares of Series B
shall be payable on the redemption date to the holder of such shares against surrender of the
certificate(s) evidencing such shares to the Corporation or its agent. Any declared but unpaid
dividends payable on a redemption date that occurs subsequent to the Dividend Record Date for a
Dividend Period shall not be paid to the holder entitled to receive the redemption price on the
redemption date, but rather shall be paid to the holder of record of the redeemed shares on such
Dividend Record Date relating to the Dividend Payment Date as provided in Section 4 above.
(b) No Sinking Fund. The Series B will not be subject to any mandatory redemption, sinking
fund or other similar provisions. Holders of Series B will have no right to require redemption of
any shares of Series B.
(c) Notice of Redemption. Notice of every redemption of shares of Series B shall be given by
first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses appearing on the
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books of the Corporation. Such mailing shall be at least 30 days and not more than 60 days
before the date fixed for redemption. Any notice mailed as provided in this Subsection shall be
conclusively presumed to have been duly given, whether or not the holder receives such notice, but
failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof,
to any holder of shares of Series B designated for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of Series B. Notwithstanding the foregoing, if
the Series B or any depositary shares representing interests in the Series B are issued in
book-entry form through The Depository Trust Company or any other similar facility, notice of
redemption may be given to the holders of Series B at such time and in any manner permitted by such
facility. Each such notice given to a holder shall state: (1) the redemption date; (2) the number
of shares of Series B to be redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price; and
(4) the place or places where certificates for such shares are to be surrendered for payment of the
redemption price.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series B at
the time outstanding, the shares to be redeemed shall be selected either pro rata or in such other
manner as the Corporation may determine to be fair and equitable. Subject to the provisions
hereof, the Corporation shall have full power and authority to prescribe the terms and conditions
upon which shares of Series B shall be redeemed from time to time. If fewer than all the shares
represented by any certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or
before the redemption date specified in the notice all funds necessary for the redemption have been
set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata
benefit of the holders of the shares called for redemption, so as to be and continue to be
available therefor, then, notwithstanding that any certificate for any share so called for
redemption has not been surrendered for cancellation, on and after the redemption date dividends
shall cease to accrue on all shares so called for redemption, all shares so called for redemption
shall no longer be deemed outstanding and all rights with respect to such shares shall forthwith on
such redemption date cease and terminate, except only the right of the holders thereof to receive
the amount payable on such redemption, without interest. Any funds unclaimed at the end of three
years from the redemption date shall, to the extent permitted by law, be released to the
Corporation, after which time the holders of the shares so called for redemption shall look only to
the Corporation for payment of the redemption price of such shares.
Section 7. Conversion Upon Regulatory Changes. If both (i) and (ii) below occur:
(i) after the date of the issuance of the Series B, the Corporation (by election or
otherwise) becomes subject to any law, rule, regulation or guidance (together,
“Regulations”) relating to its capital adequacy, which Regulation (x) modifies the existing
requirements for treatment as Allowable Capital (as defined
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under the Securities and Exchange Commission rules relating to consolidated supervised
entities as in effect from time to time), (y) provides for a type or level of capital
characterized as “Tier 1” or its equivalent pursuant to Regulations of any governmental
agency, authority or other body having regulatory jurisdiction over the Corporation (or any
of its subsidiaries or consolidated affiliates) and implementing the capital standards
published by the Basel Committee on Banking Supervision, the Securities and Exchange
Commission, the Board of Governors of the Federal Reserve System or any other United States
national governmental agency, authority or other body, or any other applicable regime based
on capital standards published by the Basel Committee on Banking Supervision or its
successor, or (z) provides for a type or level of capital that in the judgment of the
Corporation (after consultation with legal counsel of recognized standing) is substantially
equivalent to such “Tier 1” capital (such capital described in either (y) or (z) above is
referred to below as “Tier 1 Capital Equivalent”), and
(ii) the Corporation affirmatively elects to qualify the Series B for treatment as
Allowable Capital or Tier 1 Capital Equivalent without any sublimit or other quantitative
restriction on the inclusion of the Series B in Allowable Capital or Tier 1 Capital
Equivalent (other than any limitation the Corporation elects to accept and any limitation
requiring that common equity or a specified form of common equity constitute the dominant
form of Allowable Capital or Tier 1 Capital Equivalent) under such Regulations,
then, upon such affirmative election, the Series B shall be convertible at the Corporation’s option
into a new series of Preferred Stock having terms and provisions substantially identical to those
of the Series B, except that such new series may have such additional or modified rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, as are
necessary in the judgment of the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors) (after consultation with legal counsel of recognized standing)
to comply with the Required Unrestricted Capital Provisions (as defined below), provided that the
Corporation will not cause any such conversion unless the Board of Directors or the Committee (or
another duly authorized committee of the Board of Directors) determines that the rights,
preferences, privileges and voting powers, and the qualifications, limitations and restrictions
thereof, of such new series of Preferred Stock, taken as a whole, are not materially less favorable
to the holders thereof than the rights, preferences, privileges and voting powers, and the
qualifications, limitations and restrictions thereof, of the Series B, taken as a whole.
As used above, the term “Required Unrestricted Capital Provisions” means such terms and
provisions as are, in the judgment of the Corporation (after consultation with counsel of
recognized standing), required for preferred stock to be treated as Allowable Capital or Tier 1
Capital Equivalent, as applicable, without any sublimit or other quantitative restriction on the
inclusion of such preferred stock in Allowable Capital or Tier 1 Capital Equivalent, as applicable
(other than any limitation the Corporation elects to accept and any limitation requiring that
common equity or a specified form of common equity constitute the dominant form of Allowable
Capital or Tier 1 Capital Equivalent) pursuant to the applicable Regulations.
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The Corporation shall provide notice to the holders of Series B of any election to qualify the
Series B for Allowable Capital or Tier 1 Capital Equivalent treatment and of any determination to
convert the Series B into a new series of Preferred Stock pursuant to the terms of this Section 7,
promptly upon the effectiveness of any such election or determination. A copy of such notice and of
the relevant Regulations shall be maintained on file at the principal offices of the Corporation
and, upon request, will be made available to any stockholder of the Corporation. Any conversion of
the Series B pursuant to this Section 7 shall be effected pursuant to such procedures as the
Corporation may determine and publicly disclose.
Except as specified in this Section 7, holders of Series B shares shall have no right to
exchange or convert such shares into any other securities.
Section 8. Voting Rights.
(a) General. The holders of Series B shall not have any voting rights except as set forth
below or as otherwise from to time required by law.
(b) Right To Elect Two Directors Upon Nonpayment Events. If and whenever dividends on any
shares of Series B shall not have been declared and paid for at least six Dividend Periods, whether
or not consecutive (a “Nonpayment Event”), the number of directors then constituting the Board of
Directors shall automatically be increased by two and the holders of Series B, together with the
holders of any outstanding shares of Voting Preferred Stock, voting together as a single class,
shall be entitled to elect the two additional directors (the “Preferred Stock Directors”), provided
that it shall be a qualification for election for any such Preferred Stock Director that the
election of such director shall not cause the Corporation to violate the corporate governance
requirement of the New York Stock Exchange (or any other securities exchange or other trading
facility on which securities of the Corporation may then be listed or traded) that listed or traded
companies must have a majority of independent directors and provided further that the Board of
Directors shall at no time include more than two Preferred Stock Directors (including, for purposes
of this limitation, all directors that the holders of any series of Voting Preferred Stock are
entitled to elect pursuant to like voting rights).
In the event that the holders of the Series B, and such other holders of Voting Preferred
Stock, shall be entitled to vote for the election of the Preferred Stock Directors following a
Nonpayment Event, such directors shall be initially elected following such Nonpayment Event only at
a special meeting called at the request of the holders of record of at least 20% of the Series B or
of any other series of Voting Preferred Stock then outstanding (unless such request for a special
meeting is received less than 90 days before the date fixed for the next annual or special meeting
of the stockholders of the Corporation, in which event such election shall be held only at such
next annual or special meeting of stockholders), and at each subsequent annual meeting of
stockholders of the Corporation. Such request to call a special meeting for the initial election
of the Preferred Stock Directors after a Nonpayment Event shall be made by written notice, signed
by the requisite holders of Series B or Voting Preferred Stock, and delivered to the Secretary of
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the Corporation in such manner as provided for in Section 10 below, or as may otherwise be
required by law.
When dividends have been paid (or declared and a sum sufficient for payment thereof set aside)
in full on the Series B for at least four Dividend Periods (whether or not consecutive) after a
Nonpayment Event, then the right of the holders of Series B to elect the Preferred Stock Directors
shall cease (but subject always to revesting of such voting rights in the case of any future
Nonpayment Event), and, if and when any rights of holders of Series B and Voting Preferred Stock to
elect the Preferred Stock Directors shall have ceased, the terms of office of all the Preferred
Stock Directors shall forthwith terminate and the number of directors constituting the Board of
Directors shall automatically be reduced accordingly.
Any Preferred Stock Director may be removed at any time without cause by the holders of record
of a majority of the outstanding shares of the Series B and Voting Preferred Stock, when they have
the voting rights described above (voting together as a single class). So long as a Nonpayment
Event shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to
the initial election of Preferred Stock Directors after a Nonpayment Event) may be filled by the
written consent of the Preferred Stock Director remaining in office, or if none remains in office,
by a vote of the holders of record of a majority of the outstanding shares of the Series B and all
Voting Preferred Stock, when they have the voting rights described above (voting together as a
single class). Any such vote of stockholders to remove, or to fill a vacancy in the office of, a
Preferred Stock Director may be taken only at a special meeting of such stockholders, called as
provided above for an initial election of Preferred Stock Director after a Nonpayment Event (unless
such request is received less than 90 days before the date fixed for the next annual or special
meeting of the stockholders, in which event such election shall be held at such next annual or
special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter that shall come before the Board of Directors for a vote. Each Preferred
Stock Director elected at any special meeting of stockholders or by written consent of the other
Preferred Stock Director shall hold office until the next annual meeting of the stockholders if
such office shall not have previously terminated as above provided.
(c) Other Voting Rights. So long as any shares of Series B are outstanding, in addition to
any other vote or consent of stockholders required by law or by the Certificate of Incorporation,
the vote or consent of the holders of at least 66⅔% of the shares of Series B and any Voting
Preferred Stock at the time outstanding and entitled to vote thereon, voting together as a single
class, given in person or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Certificate of
Incorporation to authorize or create, or increase the authorized amount of, any shares of
any class or series of capital stock of the Corporation ranking senior to the Series B with
respect to either or both the payment of
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dividends and/or the distribution of assets on any liquidation, dissolution or winding
up of the Corporation;
(ii) Amendment of Series B. Any amendment, alteration or repeal of any provision of
the Certificate of Incorporation so as to materially and adversely affect the special
rights, preferences, privileges or voting powers of the Series B, taken as a whole; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Any
consummation of a binding share exchange or reclassification involving the Series B, or of
a merger or consolidation of the Corporation with another corporation or other entity,
unless in each case (x) the shares of Series B remain outstanding or, in the case of any
such merger or consolidation with respect to which the Corporation is not the surviving or
resulting entity, are converted into or exchanged for preference securities of the
surviving or resulting entity or its ultimate parent, and (y) such shares remaining
outstanding or such preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, taken
as a whole, as are not materially less favorable to the holders thereof than the rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, of the
Series B immediately prior to such consummation, taken as a whole;
provided, however, that for all purposes of this Section 8(c), any increase in the amount of the
authorized or issued Series B or authorized Preferred Stock, or the creation and issuance, or an
increase in the authorized or issued amount, of any other series of Preferred Stock ranking equally
with and/or junior to the Series B with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative) and/or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers of the Series B. In addition, any conversion of the Series B pursuant
to Section 7 above shall not be deemed to adversely affect the rights, preferences, privileges and
voting powers of the Series B.
If any amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 7(c) would adversely affect the Series B and one or more
but not all other series of Preferred Stock, then only the Series B and such series of Preferred
Stock as are adversely affected by and entitled to vote on the matter shall vote on the matter
together as a single class (in lieu of all other series of Preferred Stock).
(d) Changes for Clarification. Without the consent of the holders of the Series B, so long as
such action does not adversely affect the rights, preferences, privileges and voting powers, and
limitations and restrictions thereof, of the Series B, the Corporation may amend, alter, supplement
or repeal any terms of the Series B:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this
Certificate of Designations that may be defective or inconsistent; or
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(ii) to make any provision with respect to matters or questions arising with respect to the
Series B that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision for Redemption. No vote or consent of the holders of Series B
shall be required pursuant to Section 8(b), (c) or (d) above if, at or prior to the time when any
such vote or consent would otherwise be required pursuant to such Section, all outstanding shares
of Series B shall have been redeemed, or shall have been called for redemption upon proper notice
and sufficient funds shall have been set aside for such redemption, in each case pursuant to
Section 6 above.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting
any meeting of the holders of Series B (including, without limitation, the fixing of a record date
in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of
written consents and any other aspect or matter with regard to such a meeting or such consents
shall be governed by any rules the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors), in its discretion, may adopt from time to time, which rules
and procedures shall conform to the requirements of the Certificate of Incorporation, the Bylaws,
applicable law and any national securities exchange or other trading facility on which the Series B
is listed or traded at the time. Whether the vote or consent of the holders of a plurality,
majority or other portion of the shares of Series B and any Voting Preferred Stock has been cast or
given on any matter on which the holders of shares of Series B are entitled to vote shall be
determined by the Corporation by reference to the specified liquidation amounts of the shares voted
or covered by the consent.
Section 9. Record Holders. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for the Series B may deem and treat the record holder of any share of Series
B as the true and lawful owner thereof for all purposes, and neither the Corporation nor such
transfer agent shall be affected by any notice to the contrary.
Section 10. Notices. All notices or communications in respect of Series B shall be
sufficiently given if given in writing and delivered in person or by first class mail, postage
prepaid, or if given in such other manner as may be permitted in this Certificate of Designations,
in the Certificate of Incorporation or Bylaws or by applicable law.
Section 11. No Preemptive Rights. No share of Series B shall have any rights of preemption
whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or
granted with respect thereto, regardless of how such securities, or such warrants, rights or
options, may be designated, issued or granted.
Section 12. Other Rights. The shares of Series B shall not have any voting powers,
preferences or relative, participating, optional or other special rights, or qualifications,
limitations or restrictions thereof, other than as set forth herein or in the Certificate of
Incorporation or as provided by applicable law.
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Appendix C
CERTIFICATE OF DESIGNATIONS
OF
FLOATING RATE NON-CUMULATIVE PREFERRED STOCK, SERIES C
OF
THE GOLDMAN SACHS GROUP, INC.
THE GOLDMAN SACHS GROUP, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of
Sections 103 and 151 thereof, DOES HEREBY CERTIFY:
The Securities Issuance Committee (the “Committee”) of the board of directors of the
Corporation (the “Board of Directors”), in accordance with the resolutions of the Board of
Directors dated September 16, 2005, the provisions of the amended and restated certificate of
incorporation and bylaws of the Corporation and applicable law, by unanimous written consent dated
October 25, 2005, adopted the following resolution creating a series of 25,000 shares of Preferred
Stock of the Corporation designated as “Floating Rate Non-Cumulative Preferred Stock, Series C”.
RESOLVED, that pursuant to the authority vested in the Committee and in accordance with the
resolutions of the Board of Directors dated September 16, 2005, the provisions of the amended and
restated certificate of incorporation and bylaws of the Corporation and applicable law, a series of
Preferred Stock, par value $.01 per share, of the Corporation be and hereby is created, and that
the designation and number of shares of such series, and the voting and other powers, preferences
and relative, participating, optional or other rights, and the qualifications, limitations and
restrictions thereof, of the shares of such series, are as follows:
Section 1. Designation. The distinctive serial designation of such series of Preferred Stock
is “Floating Rate Non-Cumulative Preferred Stock, Series C” (“Series C”). Each share of Series C
shall be identical in all respects to every other share of Series C, except as to the respective
dates from which dividends thereon shall accrue, to the extent such dates may differ as permitted
pursuant to Section 4(a) below.
Section 2. Number of Shares. The authorized number of shares of Series C shall be 25,000.
Shares of Series C that are redeemed, purchased or otherwise acquired by the Corporation, or
converted into another series of Preferred Stock, shall be cancelled and shall revert to authorized
but unissued shares of Series C.
Section 3. Definitions. As used herein with respect to Series C:
(a) “Board of Directors” means the board of directors of the Corporation.
(b) “ByLaws” means the amended and restated bylaws of the Corporation, as they may be
amended from time to time.
(c) “Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or
Friday and is not a day on which banking institutions in New York City generally are
authorized or obligated by law, regulation or executive order to close.
(d) “Calculation Agent” means, at any time, the person or entity appointed by the
Corporation and serving as such agent at such time. The Corporation may terminate any such
appointment and may appoint a successor agent at any time and from time to time, provided
that the Corporation shall use its best efforts to ensure that there is, at all relevant
times when the Series C is outstanding, a person or entity appointed and serving as such
agent. The Calculation Agent may be a person or entity affiliated with the Corporation.
(e) “Certificate of Designations” means this Certificate of Designations relating to
the Series C, as it may be amended from time to time.
(f) “Certification of Incorporation” shall mean the amended and restated certificate
of incorporation of the Corporation, as it may be amended from time to time, and shall
include this Certificate of Designations.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the
Corporation.
(h) “Junior Stock” means the Common Stock and any other class or series of stock of
the Corporation (other than Series C) that ranks junior to Series C either or both as to
the payment of dividends and/or as to the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
(i) “London Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday
or Friday and is a day on which dealings in U.S. dollars are transacted in the London
interbank market.
(j) “Moneyline Telerate Page” means the display on Moneyline Telerate, Inc., or any
successor service, on the page or pages specified in Section 4 below or any replacement
page or pages on that service.
(k) “Parity Stock” means any class or series of stock of the Corporation (other than
Series C) that ranks equally with Series C both in the payment of dividends and in the
distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(l) “Preferred Stock” means any and all series of Preferred Stock, having a par value
of $0.01 per share, of the Corporation, including the Series C.
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(m) “Representative Amount” means, at any time, an amount that, in the Calculation
Agent’s judgment, is representative of a single transaction in the relevant market at the
relevant time.
(n) “Voting Preferred Stock” means, with regard to any election or removal of a
Preferred Stock Director (as defined in Section 8(b) below) or any other matter as to which
the holders of Series C are entitled to vote as specified in Section 8 of this Certificate
of Designations, any and all series of Preferred Stock (other than Series C) that rank
equally with Series C either as to the payment of dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Corporation and upon which like
voting rights have been conferred and are exercisable with respect to such matter.
Section 4. Dividends.
(a) Rate. Holders of Series C shall be entitled to receive, when, as and if declared by the
Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors) out of funds legally available for the payment of dividends under Delaware law,
non-cumulative cash dividends at the rate determined as set forth below in this Section (4) applied
to the liquidation preference amount of $25,000 per share of Series C. Such dividends shall be
payable quarterly in arrears (as provided below in this Section 4(a)), but only when, as and if
declared by the Board of Directors or the Committee (or another duly authorized committee of the
Board of Directors), on February 10, May 10, August 10 and November 10 (“Dividend Payment Dates”),
commencing on February 10, 2006; provided that if any such Dividend Payment Date would otherwise
occur on a day that is not a Business Day, such Dividend Payment Date shall instead be (and any
dividend payable on Series C on such Dividend Payment Date shall instead be payable on) the
immediately succeeding Business Day, unless such immediately succeeding Business Day falls in the
next calendar month, in which case such Dividend Payment Date shall instead be (and any such
dividend shall instead be payable on) the immediately preceding Business Day. Dividends on Series C
shall not be cumulative; holders of Series C shall not be entitled to receive any dividends not
declared by the Board of Directors or the Committee (or another duly authorized committee of the
Board of Directors) and no interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend not so declared.
Dividends that are payable on Series C on any Dividend Payment Date will be payable to holders
of record of Series C as they appear on the stock register of the Corporation on the applicable
record date, which shall be the 15th calendar day before such Dividend Payment Date or such other
record date fixed by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) that is not more than 60 nor less than 10 days prior to such Dividend
Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be
a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a “Dividend Period”) shall commence on and include a Dividend Payment
Date (other than the initial Dividend Period, which shall commence
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on and include the date of original issue of the Series C, provided that, for any share of
Series C issued after such original issue date, the initial Dividend Period for such shares may
commence on and include such other date as the Board of Directors or the Committee (or another duly
authorized committee of the Board of Directors) shall determine and publicly disclose) and shall
end on and include the calendar day next preceding the next Dividend Payment Date. Dividends
payable on the Series C in respect of any Dividend Period shall be computed by the Calculation
Agent on the basis of a 360-day year and the actual number of days elapsed in such Dividend Period.
Dividends payable in respect of a Dividend Period shall be payable in arrears - i.e., on the
first Dividend Payment Date after such Dividend Period.
The dividend rate on the Series C, for each Dividend Period, shall be a rate per annum equal
to the greater of (1) 0.75% above LIBOR (as defined below) for such Dividend Period and (2) 4.00%.
LIBOR, with respect to any Dividend Period, means the offered rate expressed as a percentage per
annum for three-month deposits in U.S. dollars on the first day of such Dividend Period, as that
rate appears on Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the second London
Business Day immediately preceding the first day of such Dividend Period.
If the rate described in the preceding paragraph does not appear on Moneyline Telerate Page
3750, LIBOR shall be determined on the basis of the rates, at approximately 11:00 A.M., London
time, on the second London Business Day immediately preceding the first day of such Dividend
Period, at which deposits of the following kind are offered to prime banks in the London interbank
market by four major banks in that market selected by the Calculation Agent: three-month deposits
in U.S. dollars, beginning on the first day of such Dividend Period, and in a Representative
Amount. The Calculation Agent shall request the principal London office of each of these banks to
provide a quotation of its rate at approximately 11:00 A.M., London time. If at least two
quotations are provided, LIBOR for such Dividend Period shall be the arithmetic mean of such
quotations.
If fewer than two quotations are provided as described in the preceding paragraph, LIBOR for
such Dividend Period shall be the arithmetic mean of the rates for loans of the following kind to
leading European banks quoted, at approximately 11:00 A.M. New York City time, on the second London
Business Day immediately preceding the first day of such Dividend Period, by three major banks in
New York City selected by the Calculation Agent: three-month loans of U.S. dollars, beginning on
the first day of such Dividend Period, and in a Representative Amount.
If fewer than three banks selected by the Calculation Agent are quoting as described in the
preceding paragraph, LIBOR for such Dividend Period shall be LIBOR in effect for the prior Dividend
Period.
The Calculation Agent’s determination of any dividend rate, and its calculation of the amount
of dividends for any Dividend Period, will be maintained on file at the Corporation’s principal
offices and will be available to any stockholder upon request and will be final and binding in the
absence of manifest error.
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Holders of Series C shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and payable on the Series C as
specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(b) Priority of Dividends. So long as any share of Series C remains outstanding, no dividend
shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than a
dividend payable solely in Junior Stock), and no Common Stock or other Junior Stock shall be
purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior
Stock, or the exchange or conversion of one share of Junior Stock for or into another share of
Junior Stock and other than through the use of the proceeds of a substantially contemporaneous sale
of Junior Stock) during a Dividend Period, unless the full dividends for the latest completed
Dividend Period on all outstanding shares of Series C have been declared and paid (or declared and
a sum sufficient for the payment thereof has been set aside). The foregoing provision shall not
restrict the ability of Goldman, Sachs & Co., or any other affiliate of the Corporation, to engage
in any market-making transactions in Junior Stock in the ordinary course of business.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside)
on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates
different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend
Period) in full upon the Series C and any shares of Parity Stock, all dividends declared on the
Series C and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of
parity stock having dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend Payment Date) shall be
declared pro rata so that the respective amounts of such dividends shall bear the same ratio to
each other as all accrued but unpaid dividends per share on the Series C and all Parity Stock
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) bear to each other.
Subject to the foregoing, such dividends (payable in cash, securities or other property) as
may be determined by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) may be declared and paid on any securities, including Common Stock and
other Junior Stock, from time to time out of any funds legally available for such payment, and the
Series C shall not be entitled to participate in any such dividends.
Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series C
shall be entitled to receive, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to
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stockholders of the Corporation, and after satisfaction of all liabilities and obligations to
creditors of the Corporation, before any distribution of such assets or proceeds is made to or set
aside for the holders of Common Stock and any other stock of the Corporation ranking junior to the
Series C as to such distribution, in full an amount equal to $25,000 per share (the “Series C
Liquidation Amount”), together with an amount equal to all dividends (if any) that have been
declared but not paid prior to the date of payment of such distribution (but without any amount in
respect of dividends that have not been declared prior to such payment date).
(b) Partial Payment. If in any distribution described in Section 5(a) above the assets of the
Corporation or proceeds thereof are not sufficient to pay the Liquidation Preferences (as defined
below) in full to all holders of Series C and all holders of any stock of the Corporation ranking
equally with the Series C as to such distribution, the amounts paid to the holders of Series C and
to the holders of all such other stock shall be paid pro rata in accordance with the respective
aggregate Liquidation Preferences of the holders of Series C and the holders of all such other
stock. In any such distribution, the “Liquidation Preference” of any holder of stock of the
Corporation shall mean the amount otherwise payable to such holder in such distribution (assuming
no limitation on the assets of the Corporation available for such distribution), including an
amount equal to any declared but unpaid dividends (and, in the case of any holder of stock other
than Series C and on which dividends accrue on a cumulative basis, an amount equal to any unpaid,
accrued, cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all
holders of Series C, the holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their respective rights and
preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5,
the merger or consolidation of the Corporation with any other corporation or other entity,
including a merger or consolidation in which the holders of Series C receive cash, securities or
other property for their shares, or the sale, lease or exchange (for cash, securities or other
property) of all or substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
(a) Optional Redemption. The Series C may not be redeemed by the Corporation prior to October31, 2010. On or after October 31, 2010, the Corporation, at its option, may redeem, in whole at
any time or in part from time to time, the shares of Series C at the time outstanding, upon notice
given as provided in Section 6(c) below, at a redemption price equal to $25,000 per share, together
(except as otherwise provided herein below) with an amount equal to any dividends that have been
declared but not paid prior to the redemption date (but with no amount in respect of any dividends
that have not been declared prior to such date). The redemption price for any shares of Series C
shall be payable on the redemption date to the holder of such shares against surrender of the
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certificate(s) evidencing such shares to the Corporation or its agent. Any declared but
unpaid dividends payable on a redemption date that occurs subsequent to the Dividend Record Date
for a Dividend Period shall not be paid to the holder entitled to receive the redemption price on
the redemption date, but rather shall be paid to the holder of record of the redeemed shares on
such Dividend Record Date relating to the Dividend Payment Date as provided in Section 4 above.
(b) No Sinking Fund. The Series C will not be subject to any mandatory redemption, sinking
fund or other similar provisions. Holders of Series C will have no right to require redemption of
any shares of Series C.
(c) Notice of Redemption. Notice of every redemption of shares of Series C shall be given by
first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses appearing on the books of the Corporation. Such mailing shall
be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice
mailed as provided in this Subsection shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice, but failure duly to give such notice by mail, or
any defect in such notice or in the mailing thereof, to any holder of shares of Series C designated
for redemption shall not affect the validity of the proceedings for the redemption of any other
shares of Series C. Notwithstanding the foregoing, if the Series C or any depositary shares
representing interests in the Series C are issued in book-entry form through The Depository Trust
Company or any other similar facility, notice of redemption may be given to the holders of Series C
at such time and in any manner permitted by such facility. Each such notice given to a holder
shall state: (1) the redemption date; (2) the number of shares of Series C to be redeemed and, if
less than all the shares held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the redemption price; and (4) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series C at
the time outstanding, the shares to be redeemed shall be selected either pro rata or in such other
manner as the Corporation may determine to be fair and equitable. Subject to the provisions
hereof, the Corporation shall have full power and authority to prescribe the terms and conditions
upon which shares of Series C shall be redeemed from time to time. If fewer than all the shares
represented by any certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or
before the redemption date specified in the notice all funds necessary for the redemption have been
set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata
benefit of the holders of the shares called for redemption, so as to be and continue to be
available therefor, then, notwithstanding that any certificate for any share so called for
redemption has not been surrendered for cancellation, on and after the redemption date dividends
shall cease to accrue on all shares so called for redemption, all shares so called for redemption
shall no longer be deemed
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outstanding and all rights with respect to such shares shall forthwith on such redemption date
cease and terminate, except only the right of the holders thereof to receive the amount payable on
such redemption, without interest. Any funds unclaimed at the end of three years from the
redemption date shall, to the extent permitted by law, be released to the Corporation, after which
time the holders of the shares so called for redemption shall look only to the Corporation for
payment of the redemption price of such shares.
Section 7. Conversion Upon Regulatory Changes. If both (i) and (ii) below occur:
(i) after the date of the issuance of the Series C, the Corporation (by election or
otherwise) becomes subject to any law, rule, regulation or guidance (together,
“Regulations”) relating to its capital adequacy, which Regulation (x) modifies the existing
requirements for treatment as Allowable Capital (as defined under the Securities and
Exchange Commission rules relating to consolidated supervised entities as in effect from
time to time), (y) provides for a type or level of capital characterized as “Tier 1” or its
equivalent pursuant to Regulations of any governmental agency, authority or other body
having regulatory jurisdiction over the Corporation (or any of its subsidiaries or
consolidated affiliates) and implementing the capital standards published by the Basel
Committee on Banking Supervision, the Securities and Exchange Commission, the Board of
Governors of the Federal Reserve System or any other United States national governmental
agency, authority or other body, or any other applicable regime based on capital standards
published by the Basel Committee on Banking Supervision or its successor, or (z) provides
for a type or level of capital that in the judgment of the Corporation (after consultation
with legal counsel of recognized standing) is substantially equivalent to such “Tier 1”
capital (such capital described in either (y) or (z) above is referred to below as “Tier 1
Capital Equivalent”), and
(ii) the Corporation affirmatively elects to qualify the Series C for treatment as
Allowable Capital or Tier 1 Capital Equivalent without any sublimit or other quantitative
restriction on the inclusion of the Series C in Allowable Capital or Tier 1 Capital
Equivalent (other than any limitation the Corporation elects to accept and any limitation
requiring that common equity or a specified form of common equity constitute the dominant
form of Allowable Capital or Tier 1 Capital Equivalent) under such Regulations,
then, upon such affirmative election, the Series C shall be convertible at the Corporation’s option
into a new series of Preferred Stock having terms and provisions substantially identical to those
of the Series C, except that such new series may have such additional or modified rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, as are
necessary in the judgment of the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors) (after consultation with legal counsel of recognized standing)
to comply with the Required Unrestricted Capital Provisions (as defined below), provided that the
Corporation will not cause any such conversion unless the Board of Directors or the Committee (or
another duly authorized committee of the Board of Directors) determines that the rights,
preferences, privileges and
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voting powers, and the qualifications, limitations and restrictions thereof, of such new series of
Preferred Stock, taken as a whole, are not materially less favorable to the holders thereof than
the rights, preferences, privileges and voting powers, and the qualifications, limitations and
restrictions thereof, of the Series C, taken as a whole.
As used above, the term “Required Unrestricted Capital Provisions” means such terms and
provisions as are, in the judgment of the Corporation (after consultation with counsel of
recognized standing), required for preferred stock to be treated as Allowable Capital or Tier 1
Capital Equivalent, as applicable, without any sublimit or other quantitative restriction on the
inclusion of such preferred stock in Allowable Capital or Tier 1 Capital Equivalent, as applicable
(other than any limitation the Corporation elects to accept and any limitation requiring that
common equity or a specified form of common equity constitute the dominant form of Allowable
Capital or Tier 1 Capital Equivalent) pursuant to the applicable Regulations.
The Corporation shall provide notice to the holders of Series C of any election to qualify the
Series C for Allowable Capital or Tier 1 Capital Equivalent treatment and of any determination to
convert the Series C into a new series of Preferred Stock pursuant to the terms of this Section 7,
promptly upon the effectiveness of any such election or determination. A copy of such notice and of
the relevant Regulations shall be maintained on file at the principal offices of the Corporation
and, upon request, will be made available to any stockholder of the Corporation. Any conversion of
the Series C pursuant to this Section 7 shall be effected pursuant to such procedures as the
Corporation may determine and publicly disclose.
Except as specified in this Section 7, holders of Series C shares shall have no right to
exchange or convert such shares into any other securities.
Section 8. Voting Rights.
(a) General. The holders of Series C shall not have any voting rights except as set forth
below or as otherwise from to time required by law.
(b) Right To Elect Two Directors Upon Nonpayment Events. If and whenever dividends on any
shares of Series C shall not have been declared and paid for at least six Dividend Periods, whether
or not consecutive (a “Nonpayment Event”), the number of directors then constituting the Board of
Directors shall automatically be increased by two and the holders of Series C, together with the
holders of any outstanding shares of Voting Preferred Stock, voting together as a single class,
shall be entitled to elect the two additional directors (the “Preferred Stock Directors”), provided
that it shall be a qualification for election for any such Preferred Stock Director that the
election of such director shall not cause the Corporation to violate the corporate governance
requirement of the New York Stock Exchange (or any other securities exchange or other trading
facility on which securities of the Corporation may then be listed or traded) that listed or traded
companies must have a majority of independent directors and provided further that the Board of
Directors shall at no time include more than two Preferred Stock Directors (including, for purposes
of this limitation, all directors that the holders of any series of Voting Preferred Stock are
entitled to elect pursuant to like voting rights).
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In the event that the holders of the Series C, and such other holders of Voting Preferred
Stock, shall be entitled to vote for the election of the Preferred Stock Directors following a
Nonpayment Event, such directors shall be initially elected following such Nonpayment Event only at
a special meeting called at the request of the holders of record of at least 20% of the Series C or
of any other series of Voting Preferred Stock then outstanding (unless such request for a special
meeting is received less than 90 days before the date fixed for the next annual or special meeting
of the stockholders of the Corporation, in which event such election shall be held only at such
next annual or special meeting of stockholders), and at each subsequent annual meeting of
stockholders of the Corporation. Such request to call a special meeting for the initial election
of the Preferred Stock Directors after a Nonpayment Event shall be made by written notice, signed
by the requisite holders of Series C or Voting Preferred Stock, and delivered to the Secretary of
the Corporation in such manner as provided for in Section 10 below, or as may otherwise be required
by law.
When dividends have been paid (or declared and a sum sufficient for payment thereof set aside)
in full on the Series C for at least four Dividend Periods (whether or not consecutive) after a
Nonpayment Event, then the right of the holders of Series C to elect the Preferred Stock Directors
shall cease (but subject always to revesting of such voting rights in the case of any future
Nonpayment Event), and, if and when any rights of holders of Series C and Voting Preferred Stock to
elect the Preferred Stock Directors shall have ceased, the terms of office of all the Preferred
Stock Directors shall forthwith terminate and the number of directors constituting the Board of
Directors shall automatically be reduced accordingly.
Any Preferred Stock Director may be removed at any time without cause by the holders of record
of a majority of the outstanding shares of the Series C and Voting Preferred Stock, when they have
the voting rights described above (voting together as a single class). So long as a Nonpayment
Event shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to
the initial election of Preferred Stock Directors after a Nonpayment Event) may be filled by the
written consent of the Preferred Stock Director remaining in office, or if none remains in office,
by a vote of the holders of record of a majority of the outstanding shares of the Series C and all
Voting Preferred Stock, when they have the voting rights described above (voting together as a
single class). Any such vote of stockholders to remove, or to fill a vacancy in the office of, a
Preferred Stock Director may be taken only at a special meeting of such stockholders, called as
provided above for an initial election of Preferred Stock Director after a Nonpayment Event (unless
such request is received less than 90 days before the date fixed for the next annual or special
meeting of the stockholders, in which event such election shall be held at such next annual or
special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter that shall come before the Board of Directors for a vote. Each Preferred
Stock Director elected at any special meeting of stockholders or by written consent of the other
Preferred Stock Director shall hold office until the next annual meeting of the stockholders if
such office shall not have previously terminated as above provided.
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(c) Other Voting Rights. So long as any shares of Series C are outstanding, in addition to
any other vote or consent of stockholders required by law or by the Certificate of Incorporation,
the vote or consent of the holders of at least
662/3% of the shares of Series C and any Voting
Preferred Stock at the time outstanding and entitled to vote thereon, voting together as a single
class, given in person or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Certificate of
Incorporation to authorize or create, or increase the authorized amount of, any shares of
any class or series of capital stock of the Corporation ranking senior to the Series C with
respect to either or both the payment of dividends and/or the distribution of assets on any
liquidation, dissolution or winding up of the Corporation;
(ii) Amendment of Series C. Any amendment, alteration or repeal of any provision of
the Certificate of Incorporation so as to materially and adversely affect the special
rights, preferences, privileges or voting powers of the Series C, taken as a whole; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Any
consummation of a binding share exchange or reclassification involving the Series C, or of
a merger or consolidation of the Corporation with another corporation or other entity,
unless in each case (x) the shares of Series C remain outstanding or, in the case of any
such merger or consolidation with respect to which the Corporation is not the surviving or
resulting entity, are converted into or exchanged for preference securities of the
surviving or resulting entity or its ultimate parent, and (y) such shares remaining
outstanding or such preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, taken
as a whole, as are not materially less favorable to the holders thereof than the rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, of the
Series C immediately prior to such consummation, taken as a whole;
provided, however, that for all purposes of this Section 8(c), any increase in the amount of the
authorized or issued Series C or authorized Preferred Stock, or the creation and issuance, or an
increase in the authorized or issued amount, of any other series of Preferred Stock ranking equally
with and/or junior to the Series C with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative) and/or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers of the Series C. In addition, any conversion of the Series C pursuant
to Section 7 above shall not be deemed to adversely affect the rights, preferences, privileges and
voting powers of the Series C.
If any amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 7(c) would adversely affect the Series C and one or more
but not all other series of Preferred Stock, then only the Series C and such
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series of Preferred Stock as are adversely affected by and entitled to vote on the matter
shall vote on the matter together as a single class (in lieu of all other series of Preferred
Stock).
(d) Changes for Clarification. Without the consent of the holders of the Series C, so long as
such action does not adversely affect the rights, preferences, privileges and voting powers, and
limitations and restrictions thereof, of the Series C, the Corporation may amend, alter, supplement
or repeal any terms of the Series C:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this
Certificate of Designations that may be defective or inconsistent; or
(ii) to make any provision with respect to matters or questions arising with respect to the
Series C that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision for Redemption. No vote or consent of the holders of Series C
shall be required pursuant to Section 8(b), (c) or (d) above if, at or prior to the time when any
such vote or consent would otherwise be required pursuant to such Section, all outstanding shares
of Series C shall have been redeemed, or shall have been called for redemption upon proper notice
and sufficient funds shall have been set aside for such redemption, in each case pursuant to
Section 6 above.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting
any meeting of the holders of Series C (including, without limitation, the fixing of a record date
in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of
written consents and any other aspect or matter with regard to such a meeting or such consents
shall be governed by any rules the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors), in its discretion, may adopt from time to time, which rules
and procedures shall conform to the requirements of the Certificate of Incorporation, the Bylaws,
applicable law and any national securities exchange or other trading facility on which the Series C
is listed or traded at the time. Whether the vote or consent of the holders of a plurality,
majority or other portion of the shares of Series C and any Voting Preferred Stock has been cast or
given on any matter on which the holders of shares of Series C are entitled to vote shall be
determined by the Corporation by reference to the specified liquidation amounts of the shares voted
or covered by the consent.
Section 9. Record Holders. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for the Series C may deem and treat the record holder of any share of Series
C as the true and lawful owner thereof for all purposes, and neither the Corporation nor such
transfer agent shall be affected by any notice to the contrary.
Section 10. Notices. All notices or communications in respect of Series C shall be
sufficiently given if given in writing and delivered in person or by first class mail, postage
prepaid, or if given in such other manner as may be permitted in this
Section 11. No Preemptive Rights. No share of Series C shall have any rights of preemption
whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or
granted with respect thereto, regardless of how such securities, or such warrants, rights or
options, may be designated, issued or granted.
Section 12. Other Rights. The shares of Series C shall not have any voting powers,
preferences or relative, participating, optional or other special rights, or qualifications,
limitations or restrictions thereof, other than as set forth herein or in the Certificate of
Incorporation or as provided by applicable law.
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Appendix D
CERTIFICATE OF DESIGNATIONS
OF
FLOATING RATE NON-CUMULATIVE PREFERRED STOCK, SERIES D
OF
THE GOLDMAN SACHS GROUP, INC.
THE GOLDMAN SACHS GROUP, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of
Sections 103 and 151 thereof, DOES HEREBY CERTIFY:
The Securities Issuance Committee (the “Committee”) of the board of directors of the
Corporation (the “Board of Directors”), in accordance with the resolutions of the Board of
Directors dated September 16, 2005, the provisions of the restated certificate of incorporation and
the amended and restated bylaws of the Corporation and applicable law, by unanimous written consent
dated May 16, 2005, adopted the following resolution creating a series of 60,000 shares of
Preferred Stock of the Corporation designated as “Floating Rate Non-Cumulative Preferred Stock,
Series D”.
RESOLVED, that pursuant to the authority vested in the Committee and in accordance with the
resolutions of the Board of Directors dated September 16, 2005, the provisions of the restated
certificate of incorporation and the amended and restated bylaws of the Corporation and applicable
law, a series of Preferred Stock, par value $.01 per share, of the Corporation be and hereby is
created, and that the designation and number of shares of such series, and the voting and other
powers, preferences and relative, participating, optional or other rights, and the qualifications,
limitations and restrictions thereof, of the shares of such series, are as follows:
Section 1. Designation. The distinctive serial designation of such series of Preferred Stock
is “Floating Rate Non-Cumulative Preferred Stock, Series D” (“Series D”). Each share of Series D
shall be identical in all respects to every other share of Series D, except as to the respective
dates from which dividends thereon shall accrue, to the extent such dates may differ as permitted
pursuant to Section 4(a) below.
Section 2. Number of Shares. The authorized number of shares of Series D shall be 60,000.
Shares of Series D that are redeemed, purchased or otherwise acquired by the Corporation, or
converted into another series of Preferred Stock, shall be cancelled and shall revert to authorized
but unissued shares of Series D.
Section 3. Definitions. As used herein with respect to Series D:
(a) “Board of Directors” means the board of directors of the Corporation.
(b) “ByLaws” means the amended and restated bylaws of the Corporation, as they may be
amended from time to time.
(c) “Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or
Friday and is not a day on which banking institutions in New York City generally are
authorized or obligated by law, regulation or executive order to close.
(d) “Calculation Agent” means, at any time, the person or entity appointed by the
Corporation and serving as such agent at such time. The Corporation may terminate any such
appointment and may appoint a successor agent at any time and from time to time, provided
that the Corporation shall use its best efforts to ensure that there is, at all relevant
times when the Series D is outstanding, a person or entity appointed and serving as such
agent. The Calculation Agent may be a person or entity affiliated with the Corporation.
(e) “Certificate of Designations” means this Certificate of Designations relating to
the Series D, as it may be amended from time to time.
(f) “Certification of Incorporation” shall mean the restated certificate of
incorporation of the Corporation, as it may be amended from time to time, and shall include
this Certificate of Designations.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the
Corporation.
(h) “Junior Stock” means the Common Stock and any other class or series of stock of
the Corporation (other than Series D) that ranks junior to Series D either or both as to
the payment of dividends and/or as to the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
(i) “London Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday
or Friday and is a day on which dealings in U.S. dollars are transacted in the London
interbank market.
(j) “Moneyline Telerate Page” means the display on Moneyline Telerate, Inc., or any
successor service, on the page or pages specified in Section 4 below or any replacement
page or pages on that service.
(k) “Parity Stock” means any class or series of stock of the Corporation (other than
Series D) that ranks equally with Series D both in the payment of dividends and in the
distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(l) “Preferred Stock” means any and all series of Preferred Stock, having a par value
of $0.01 per share, of the Corporation, including the Series D.
D-2
(m) “Representative Amount” means, at any time, an amount that, in the Calculation
Agent’s judgment, is representative of a single transaction in the relevant market at the
relevant time.
(n) “Voting Preferred Stock” means, with regard to any election or removal of a
Preferred Stock Director (as defined in Section 8(b) below) or any other matter as to which
the holders of Series D are entitled to vote as specified in Section 8 of this Certificate
of Designations, any and all series of Preferred Stock (other than Series D) that rank
equally with Series D either as to the payment of dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Corporation and upon which like
voting rights have been conferred and are exercisable with respect to such matter.
Section 4. Dividends.
(a) Rate. Holders of Series D shall be entitled to receive, when, as and if declared by the
Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors) out of funds legally available for the payment of dividends under Delaware law,
non-cumulative cash dividends at the rate determined as set forth below in this Section (4) applied
to the liquidation preference amount of $25,000 per share of Series D. Such dividends shall be
payable quarterly in arrears (as provided below in this Section 4(a)), but only when, as and if
declared by the Board of Directors or the Committee (or another duly authorized committee of the
Board of Directors), on February 10, May 10, August 10 and November 10 (“Dividend Payment Dates”),
commencing on August 10, 2006; provided that if any such Dividend Payment Date would otherwise
occur on a day that is not a Business Day, such Dividend Payment Date shall instead be (and any
dividend payable on Series D on such Dividend Payment Date shall instead be payable on) the
immediately succeeding Business Day, unless such immediately succeeding Business Day falls in the
next calendar month, in which case such Dividend Payment Date shall instead be (and any such
dividend shall instead be payable on) the immediately preceding Business Day. Dividends on Series D
shall not be cumulative; holders of Series D shall not be entitled to receive any dividends not
declared by the Board of Directors or the Committee (or another duly authorized committee of the
Board of Directors) and no interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend not so declared.
Dividends that are payable on Series D on any Dividend Payment Date will be payable to holders
of record of Series D as they appear on the stock register of the Corporation on the applicable
record date, which shall be the 15th calendar day before such Dividend Payment Date or such other
record date fixed by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) that is not more than 60 nor less than 10 days prior to such Dividend
Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall
be a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a “Dividend Period”) shall commence on and include a Dividend Payment
Date (other than the initial Dividend Period, which shall commence
D-3
on and include the date of original issue of the Series D, provided that, for any share of
Series D issued after such original issue date, the initial Dividend Period for such shares may
commence on and include such other date as the Board of Directors or the Committee (or another duly
authorized committee of the Board of Directors) shall determine and publicly disclose) and shall
end on and include the calendar day next preceding the next Dividend Payment Date. Dividends
payable on the Series D in respect of any Dividend Period shall be computed by the Calculation
Agent on the basis of a 360-day year and the actual number of days elapsed in such Dividend Period.
Dividends payable in respect of a Dividend Period shall be payable in arrears - i.e., on the
first Dividend Payment Date after such Dividend Period.
The dividend rate on the Series D, for each Dividend Period, shall be a rate per annum equal
to the greater of (1) 0.67% above LIBOR (as defined below) for such Dividend Period and (2) 4.00%.
LIBOR, with respect to any Dividend Period, means the offered rate expressed as a percentage per
annum for three-month deposits in U.S. dollars on the first day of such Dividend Period, as that
rate appears on Moneyline Telerate Page 3750 (or any successor or replacement page) as of 11:00
A.M., London time, on the second London Business Day immediately preceding the first day of such
Dividend Period.
If the rate described in the preceding paragraph does not appear on Moneyline Telerate Page
3750 (or any successor or replacement page), LIBOR shall be determined on the basis of the rates,
at approximately 11:00 A.M., London time, on the second London Business Day immediately preceding
the first day of such Dividend Period, at which deposits of the following kind are offered to prime
banks in the London interbank market by four major banks in that market selected by the Calculation
Agent: three-month deposits in U.S. dollars, beginning on the first day of such Dividend Period,
and in a Representative Amount. The Calculation Agent shall request the principal London office of
each of these banks to provide a quotation of its rate at approximately 11:00 A.M., London time. If
at least two quotations are provided, LIBOR for such Dividend Period shall be the arithmetic mean
of such quotations.
If fewer than two quotations are provided as described in the preceding paragraph, LIBOR for
such Dividend Period shall be the arithmetic mean of the rates for loans of the following kind to
leading European banks quoted, at approximately 11:00 A.M. New York City time, on the second London
Business Day immediately preceding the first day of such Dividend Period, by three major banks in
New York City selected by the Calculation Agent: three-month loans of U.S. dollars, beginning on
the first day of such Dividend Period, and in a Representative Amount.
If fewer than three banks selected by the Calculation Agent are quoting as described in the
preceding paragraph, LIBOR for such Dividend Period shall be LIBOR in effect for the prior Dividend
Period.
The Calculation Agent’s determination of any dividend rate, and its calculation of the amount
of dividends for any Dividend Period, will be maintained on file at the Corporation’s principal
offices and will be available to any stockholder upon request and will be final and binding in the
absence of manifest error.
D-4
Holders of Series D shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and payable on the Series D as
specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(b) Priority of Dividends. So long as any share of Series D remains outstanding, no dividend
shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than a
dividend payable solely in Junior Stock), and no Common Stock or other Junior Stock shall be
purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior
Stock, or the exchange or conversion of one share of Junior Stock for or into another share of
Junior Stock and other than through the use of the proceeds of a substantially contemporaneous sale
of Junior Stock) during a Dividend Period, unless the full dividends for the latest completed
Dividend Period on all outstanding shares of Series D have been declared and paid (or declared and
a sum sufficient for the payment thereof has been set aside). The foregoing provision shall not
restrict the ability of Goldman, Sachs & Co., or any other affiliate of the Corporation, to engage
in any market-making transactions in Junior Stock in the ordinary course of business.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside)
on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates
different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend
Period) in full upon the Series D and any shares of Parity Stock, all dividends declared on the
Series D and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of
parity stock having dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend Payment Date) shall be
declared pro rata so that the respective amounts of such dividends shall bear the same ratio to
each other as all accrued but unpaid dividends per share on the Series D and all Parity Stock
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) bear to each other.
Subject to the foregoing, such dividends (payable in cash, securities or other property) as
may be determined by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) may be declared and paid on any securities, including Common Stock and
other Junior Stock, from time to time out of any funds legally available for such payment, and the
Series D shall not be entitled to participate in any such dividends.
Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series D
shall be entitled to receive, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to
D-5
stockholders of the Corporation, and after satisfaction of all liabilities and obligations to
creditors of the Corporation, before any distribution of such assets or proceeds is made to or set
aside for the holders of Common Stock and any other stock of the Corporation ranking junior to the
Series D as to such distribution, in full an amount equal to $25,000 per share (the “Series D
Liquidation Amount”), together with an amount equal to all dividends (if any) that have been
declared but not paid prior to the date of payment of such distribution (but without any amount in
respect of dividends that have not been declared prior to such payment date).
(b) Partial Payment. If in any distribution described in Section 5(a) above the assets of the
Corporation or proceeds thereof are not sufficient to pay the Liquidation Preferences (as defined
below) in full to all holders of Series D and all holders of any stock of the Corporation ranking
equally with the Series D as to such distribution, the amounts paid to the holders of Series D and
to the holders of all such other stock shall be paid pro rata in accordance with the respective
aggregate Liquidation Preferences of the holders of Series D and the holders of all such other
stock. In any such distribution, the “Liquidation Preference” of any holder of stock of the
Corporation shall mean the amount otherwise payable to such holder in such distribution (assuming
no limitation on the assets of the Corporation available for such distribution), including an
amount equal to any declared but unpaid dividends (and, in the case of any holder of stock other
than Series D and on which dividends accrue on a cumulative basis, an amount equal to any unpaid,
accrued, cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all
holders of Series D, the holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their respective rights and
preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5,
the merger or consolidation of the Corporation with any other corporation or other entity,
including a merger or consolidation in which the holders of Series D receive cash, securities or
other property for their shares, or the sale, lease or exchange (for cash, securities or other
property) of all or substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
(a) Optional Redemption. The Series D may not be redeemed by the Corporation prior to May 24,2011. On or after May 24, 2011, the Corporation, at its option, may redeem, in whole at any time
or in part from time to time, the shares of Series D at the time outstanding, upon notice given as
provided in Section 6(c) below, at a redemption price equal to $25,000 per share, together (except
as otherwise provided hereinbelow) with an amount equal to any dividends that have been declared
but not paid prior to the redemption date (but with no amount in respect of any dividends that have
not been declared prior to such date). The redemption price for any shares of Series D shall be
payable on the redemption date to the holder of such shares against surrender of the
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certificate(s) evidencing such shares to the Corporation or its agent. Any declared but
unpaid dividends payable on a redemption date that occurs subsequent to the Dividend Record Date
for a Dividend Period shall not be paid to the holder entitled to receive the redemption price on
the redemption date, but rather shall be paid to the holder of record of the redeemed shares on
such Dividend Record Date relating to the Dividend Payment Date as provided in Section 4 above.
(b) No Sinking Fund. The Series D will not be subject to any mandatory redemption, sinking
fund or other similar provisions. Holders of Series D will have no right to require redemption of
any shares of Series D.
(c) Notice of Redemption. Notice of every redemption of shares of Series D shall be given by
first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses appearing on the books of the Corporation. Such mailing shall
be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice
mailed as provided in this Subsection shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice, but failure duly to give such notice by mail, or
any defect in such notice or in the mailing thereof, to any holder of shares of Series D designated
for redemption shall not affect the validity of the proceedings for the redemption of any other
shares of Series D. Notwithstanding the foregoing, if the Series D or any depositary shares
representing interests in the Series D are issued in book-entry form through The Depository Trust
Company or any other similar facility, notice of redemption may be given to the holders of Series D
at such time and in any manner permitted by such facility. Each such notice given to a holder
shall state: (1) the redemption date; (2) the number of shares of Series D to be redeemed and, if
less than all the shares held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the redemption price; and (4) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series D at
the time outstanding, the shares to be redeemed shall be selected either pro rata or in such other
manner as the Corporation may determine to be fair and equitable. Subject to the provisions
hereof, the Corporation shall have full power and authority to prescribe the terms and conditions
upon which shares of Series D shall be redeemed from time to time. If fewer than all the shares
represented by any certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or
before the redemption date specified in the notice all funds necessary for the redemption have been
set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata
benefit of the holders of the shares called for redemption, so as to be and continue to be
available therefor, then, notwithstanding that any certificate for any share so called for
redemption has not been surrendered for cancellation, on and after the redemption date dividends
shall cease to accrue on all shares so called for redemption, all shares so called for redemption
shall no longer be deemed
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outstanding and all rights with respect to such shares shall forthwith on such redemption date
cease and terminate, except only the right of the holders thereof to receive the amount payable on
such redemption, without interest. Any funds unclaimed at the end of three years from the
redemption date shall, to the extent permitted by law, be released to the Corporation, after which
time the holders of the shares so called for redemption shall look only to the Corporation for
payment of the redemption price of such shares.
Section 7. Conversion Upon Regulatory Changes. If both (i) and (ii) below occur:
(i) after the date of the issuance of the Series D, the Corporation (by election or
otherwise) becomes subject to any law, rule, regulation or guidance (together,
“Regulations”) relating to its capital adequacy, which Regulation (x) modifies the existing
requirements for treatment as Allowable Capital (as defined under the Securities and
Exchange Commission rules relating to consolidated supervised entities as in effect from
time to time), (y) provides for a type or level of capital characterized as “Tier 1” or its
equivalent pursuant to Regulations of any governmental agency, authority or other body
having regulatory jurisdiction over the Corporation (or any of its subsidiaries or
consolidated affiliates) and implementing the capital standards published by the Basel
Committee on Banking Supervision, the Securities and Exchange Commission, the Board of
Governors of the Federal Reserve System or any other United States national governmental
agency, authority or other body, or any other applicable regime based on capital standards
published by the Basel Committee on Banking Supervision or its successor, or (z) provides
for a type or level of capital that in the judgment of the Corporation (after consultation
with legal counsel of recognized standing) is substantially equivalent to such “Tier 1”
capital (such capital described in either (y) or (z) above is referred to below as “Tier 1
Capital Equivalent”), and
(ii) the Corporation affirmatively elects to qualify the Series D for treatment as
Allowable Capital or Tier 1 Capital Equivalent without any sublimit or other quantitative
restriction on the inclusion of the Series D in Allowable Capital or Tier 1 Capital
Equivalent (other than any limitation the Corporation elects to accept and any limitation
requiring that common equity or a specified form of common equity constitute the dominant
form of Allowable Capital or Tier 1 Capital Equivalent) under such Regulations,
then, upon such affirmative election, the Series D shall be convertible at the Corporation’s option
into a new series of Preferred Stock having terms and provisions substantially identical to those
of the Series D, except that such new series may have such additional or modified rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, as are
necessary in the judgment of the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors) (after consultation with legal counsel of recognized standing)
to comply with the Required Unrestricted Capital Provisions (as defined below), provided that the
Corporation will not cause any such conversion unless the Board of Directors or the Committee (or
another duly authorized committee of the Board of Directors) determines that the rights,
preferences, privileges and
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voting powers, and the qualifications, limitations and restrictions thereof, of such new series of
Preferred Stock, taken as a whole, are not materially less favorable to the holders thereof than
the rights, preferences, privileges and voting powers, and the qualifications, limitations and
restrictions thereof, of the Series D, taken as a whole.
As used above, the term “Required Unrestricted Capital Provisions” means such terms and
provisions as are, in the judgment of the Corporation (after consultation with counsel of
recognized standing), required for preferred stock to be treated as Allowable Capital or Tier 1
Capital Equivalent, as applicable, without any sublimit or other quantitative restriction on the
inclusion of such preferred stock in Allowable Capital or Tier 1 Capital Equivalent, as applicable
(other than any limitation the Corporation elects to accept and any limitation requiring that
common equity or a specified form of common equity constitute the dominant form of Allowable
Capital or Tier 1 Capital Equivalent) pursuant to the applicable Regulations.
The Corporation shall provide notice to the holders of Series D of any election to qualify the
Series D for Allowable Capital or Tier 1 Capital Equivalent treatment and of any determination to
convert the Series D into a new series of Preferred Stock pursuant to the terms of this Section 7,
promptly upon the effectiveness of any such election or determination. A copy of such notice and of
the relevant Regulations shall be maintained on file at the principal offices of the Corporation
and, upon request, will be made available to any stockholder of the Corporation. Any conversion of
the Series D pursuant to this Section 7 shall be effected pursuant to such procedures as the
Corporation may determine and publicly disclose.
Except as specified in this Section 7, holders of Series D shares shall have no right to
exchange or convert such shares into any other securities.
Section 8. Voting Rights.
(a) General. The holders of Series D shall not have any voting rights except as set forth
below or as otherwise from to time required by law.
(b) Right To Elect Two Directors Upon Nonpayment Events. If and whenever dividends on any
shares of Series D shall not have been declared and paid for at least six Dividend Periods, whether
or not consecutive (a “Nonpayment Event”), the number of directors then constituting the Board of
Directors shall automatically be increased by two and the holders of Series D, together with the
holders of any outstanding shares of Voting Preferred Stock, voting together as a single class,
shall be entitled to elect the two additional directors (the “Preferred Stock Directors”), provided
that it shall be a qualification for election for any such Preferred Stock Director that the
election of such director shall not cause the Corporation to violate the corporate governance
requirement of the New York Stock Exchange (or any other securities exchange or other trading
facility on which securities of the Corporation may then be listed or traded) that listed or traded
companies must have a majority of independent directors and provided further that the Board of
Directors shall at no time include more than two Preferred Stock Directors (including, for purposes
of this limitation, all directors that the holders of any series of Voting Preferred Stock are
entitled to elect pursuant to like voting rights).
D-9
In the event that the holders of the Series D, and such other holders of Voting Preferred
Stock, shall be entitled to vote for the election of the Preferred Stock Directors following a
Nonpayment Event, such directors shall be initially elected following such Nonpayment Event only at
a special meeting called at the request of the holders of record of at least 20% of the Series D or
of any other series of Voting Preferred Stock then outstanding (unless such request for a special
meeting is received less than 90 days before the date fixed for the next annual or special meeting
of the stockholders of the Corporation, in which event such election shall be held only at such
next annual or special meeting of stockholders), and at each subsequent annual meeting of
stockholders of the Corporation. Such request to call a special meeting for the initial election
of the Preferred Stock Directors after a Nonpayment Event shall be made by written notice, signed
by the requisite holders of Series D or Voting Preferred Stock, and delivered to the Secretary of
the Corporation in such manner as provided for in Section 10 below, or as may otherwise be required
by law.
When dividends have been paid (or declared and a sum sufficient for payment thereof set aside)
in full on the Series D for at least four Dividend Periods (whether or not consecutive) after a
Nonpayment Event, then the right of the holders of Series D to elect the Preferred Stock Directors
shall cease (but subject always to revesting of such voting rights in the case of any future
Nonpayment Event), and, if and when any rights of holders of Series D and Voting Preferred Stock to
elect the Preferred Stock Directors shall have ceased, the terms of office of all the Preferred
Stock Directors shall forthwith terminate and the number of directors constituting the Board of
Directors shall automatically be reduced accordingly.
Any Preferred Stock Director may be removed at any time without cause by the holders of record
of a majority of the outstanding shares of the Series D and Voting Preferred Stock, when they have
the voting rights described above (voting together as a single class). So long as a Nonpayment
Event shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to
the initial election of Preferred Stock Directors after a Nonpayment Event) may be filled by the
written consent of the Preferred Stock Director remaining in office, or if none remains in office,
by a vote of the holders of record of a majority of the outstanding shares of the Series D and all
Voting Preferred Stock, when they have the voting rights described above (voting together as a
single class). Any such vote of stockholders to remove, or to fill a vacancy in the office of, a
Preferred Stock Director may be taken only at a special meeting of such stockholders, called as
provided above for an initial election of Preferred Stock Director after a Nonpayment Event (unless
such request is received less than 90 days before the date fixed for the next annual or special
meeting of the stockholders, in which event such election shall be held at such next annual or
special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter that shall come before the Board of Directors for a vote. Each Preferred
Stock Director elected at any special meeting of stockholders or by written consent of the other
Preferred Stock Director shall hold office until the next annual meeting of the stockholders if
such office shall not have previously terminated as above provided.
D-10
(c) Other Voting Rights. So long as any shares of Series D are outstanding, in addition to
any other vote or consent of stockholders required by law or by the Certificate of Incorporation,
the vote or consent of the holders of at least 66⅔% of the shares of Series D and any Voting
Preferred Stock at the time outstanding and entitled to vote thereon, voting together as a single
class, given in person or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Certificate of
Incorporation to authorize or create, or increase the authorized amount of, any shares of
any class or series of capital stock of the Corporation ranking senior to the Series D with
respect to either or both the payment of dividends and/or the distribution of assets on any
liquidation, dissolution or winding up of the Corporation;
(ii) Amendment of Series D. Any amendment, alteration or repeal of any provision of
the Certificate of Incorporation so as to materially and adversely affect the special
rights, preferences, privileges or voting powers of the Series D, taken as a whole; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Any
consummation of a binding share exchange or reclassification involving the Series D, or of
a merger or consolidation of the Corporation with another corporation or other entity,
unless in each case (x) the shares of Series D remain outstanding or, in the case of any
such merger or consolidation with respect to which the Corporation is not the surviving or
resulting entity, are converted into or exchanged for preference securities of the
surviving or resulting entity or its ultimate parent, and (y) such shares remaining
outstanding or such preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, taken
as a whole, as are not materially less favorable to the holders thereof than the rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, of the
Series D immediately prior to such consummation, taken as a whole;
provided, however, that for all purposes of this Section 8(c), any increase in the amount of the
authorized or issued Series D or authorized Preferred Stock, or the creation and issuance, or an
increase in the authorized or issued amount, of any other series of Preferred Stock ranking equally
with and/or junior to the Series D with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative) and/or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers of the Series D. In addition, any conversion of the Series D pursuant
to Section 7 above shall not be deemed to adversely affect the rights, preferences, privileges and
voting powers of the Series D.
If any amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 7(c) would adversely affect the Series D and one or more
but not all other series of Preferred Stock, then only the Series D and such
D-11
series of Preferred Stock as are adversely affected by and entitled to vote on the matter
shall vote on the matter together as a single class (in lieu of all other series of Preferred
Stock).
(d) Changes for Clarification. Without the consent of the holders of the Series D, so long as
such action does not adversely affect the rights, preferences, privileges and voting powers, and
limitations and restrictions thereof, of the Series D, the Corporation may amend, alter, supplement
or repeal any terms of the Series D:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this
Certificate of Designations that may be defective or inconsistent; or
(ii) to make any provision with respect to matters or questions arising with respect to the
Series D that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision for Redemption. No vote or consent of the holders of Series D
shall be required pursuant to Section 8(b), (c) or (d) above if, at or prior to the time when any
such vote or consent would otherwise be required pursuant to such Section, all outstanding shares
of Series D shall have been redeemed, or shall have been called for redemption upon proper notice
and sufficient funds shall have been set aside for such redemption, in each case pursuant to
Section 6 above.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting
any meeting of the holders of Series D (including, without limitation, the fixing of a record date
in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of
written consents and any other aspect or matter with regard to such a meeting or such consents
shall be governed by any rules the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors), in its discretion, may adopt from time to time, which rules
and procedures shall conform to the requirements of the Certificate of Incorporation, the Bylaws,
applicable law and any national securities exchange or other trading facility on which the Series D
is listed or traded at the time. Whether the vote or consent of the holders of a plurality,
majority or other portion of the shares of Series D and any Voting Preferred Stock has been cast or
given on any matter on which the holders of shares of Series D are entitled to vote shall be
determined by the Corporation by reference to the specified liquidation amounts of the shares voted
or covered by the consent.
Section 9. Record Holders. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for the Series D may deem and treat the record holder of any share of Series
D as the true and lawful owner thereof for all purposes, and neither the Corporation nor such
transfer agent shall be affected by any notice to the contrary.
Section 10. Notices. All notices or communications in respect of Series D shall be
sufficiently given if given in writing and delivered in person or by first class mail, postage
prepaid, or if given in such other manner as may be permitted in this
Section 11. No Preemptive Rights. No share of Series D shall have any rights of preemption
whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or
granted with respect thereto, regardless of how such securities, or such warrants, rights or
options, may be designated, issued or granted.
Section 12. Other Rights. The shares of Series D shall not have any voting powers,
preferences or relative, participating, optional or other special rights, or qualifications,
limitations or restrictions thereof, other than as set forth herein or in the Certificate of
Incorporation or as provided by applicable law.
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Appendix E
CERTIFICATE OF DESIGNATIONS
OF
PERPETUAL NON-CUMULATIVE PREFERRED STOCK, SERIES E
OF
THE GOLDMAN SACHS GROUP, INC.
THE GOLDMAN SACHS GROUP, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of
Sections 103 and 151 thereof, DOES HEREBY CERTIFY:
The Securities Issuance Committee (the “Committee”) of the board of directors of the
Corporation (the “Board of Directors”), in accordance with the resolutions of the Board of
Directors dated September 16, 2005 and September 29, 2006, the provisions of the restated
certificate of incorporation and the amended and restated bylaws of the Corporation and applicable
law, by unanimous written consent dated May 14, 2007, adopted the following resolution creating a
series of 17,500.1 shares of Preferred Stock of the Corporation designated as “Perpetual
Non-Cumulative Preferred Stock, Series E”.
RESOLVED, that pursuant to the authority vested in the Committee and in accordance with the
resolutions of the Board of Directors dated September 16, 2005 and September 29, 2006, the
provisions of the restated certificate of incorporation and the amended and restated bylaws of the
Corporation and applicable law, a series of Preferred Stock, par value $.01 per share, of the
Corporation be and hereby is created, and that the designation and number of shares of such series,
and the voting and other powers, preferences and relative, participating, optional or other rights,
and the qualifications, limitations and restrictions thereof, of the shares of such series, are as
follows:
Section 1. Designation. The distinctive serial designation of such series of Preferred Stock
is “Perpetual Non-Cumulative Preferred Stock, Series E” (“Series E”). Each share of Series E shall
be identical in all respects to every other share of Series E.
Section 2. Number of Shares. The authorized number of shares of Series E shall be 17,500.1.
Shares of Series E that are redeemed, purchased or otherwise acquired by the Corporation, or
converted into another series of Preferred Stock, shall be cancelled and shall revert to authorized
but unissued shares of Series E.
Section 3. Definitions. As used herein with respect to Series E:
(a) “Board of Directors” means the board of directors of the Corporation.
(b) “ByLaws” means the amended and restated bylaws of the Corporation, as they may be
amended from time to time.
(c) “Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or
Friday and is not a day on which banking institutions in New York City generally are
authorized or obligated by law, regulation or executive order to close.
(d) “Calculation Agent” means, at any time, the person or entity appointed by the
Corporation and serving as such agent at such time. The Corporation may terminate any such
appointment and may appoint a successor agent at any time and from time to time, provided
that the Corporation shall use its best efforts to ensure that there is, at all relevant
times when the Series E is outstanding, a person or entity appointed and serving as such
agent. The Calculation Agent may be a person or entity affiliated with the Corporation.
(e) “Certificate of Designations” means this Certificate of Designations relating to
the Series E, as it may be amended from time to time.
(f) “Certification of Incorporation” shall mean the restated certificate of
incorporation of the Corporation, as it may be amended from time to time, and shall include
this Certificate of Designations.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the
Corporation.
(h) “Junior Stock” means the Common Stock and any other class or series of stock of
the Corporation (other than Series E) that ranks junior to Series E either or both as to
the payment of dividends and/or as to the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
(i) “London Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday
or Friday and is a day on which dealings in U.S. dollars are transacted in the London
interbank market.
(j) “Parity Stock” means any class or series of stock of the Corporation (other than
Series E) that ranks equally with Series E both in the payment of dividends and in the
distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(k) “Preferred Stock” means any and all series of Preferred Stock, having a par value
of $0.01 per share, of the Corporation, including the Series E.
(l) “Representative Amount” means, at any time, an amount that, in the Calculation
Agent’s judgment, is representative of a single transaction in the relevant market at the
relevant time.
E-2
(m) “Reuters Screen LIBOR01” means the display designated on the Reuters 3000 Xtra (or
such other page as may replace that page on that service or such other service as may be
nominated by the British Bankers’ Association for the purpose of displaying London
interbank offered rates for U.S. Dollar deposits).
(n) “Voting Preferred Stock” means, with regard to any election or removal of a
Preferred Stock Director (as defined in Section 8(b) below) or any other matter as to which
the holders of Series E are entitled to vote as specified in Section 8 of this Certificate
of Designations, any and all series of Preferred Stock (other than Series E) that rank
equally with Series E either as to the payment of dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Corporation and upon which like
voting rights have been conferred and are exercisable with respect to such matter.
Section 4. Dividends.
(a) Rate. Holders of Series E shall be entitled to receive, when, as and if declared by the
Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors) out of funds legally available for the payment of dividends under Delaware law,
non-cumulative cash dividends at the rate determined as set forth below in this Section (4) applied
to the liquidation preference amount of $100,000 per share of Series E. Such dividends shall be
payable in arrears (as provided below in this Section 4(a)), but only when, as and if declared by
the Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors), (a) if the shares of Series E are issued prior to June 1, 2012 (or if such date is not
a Business Day, the next Business Day), on June 1 and December 1 of each year until June 1, 2012,
and (b) thereafter, on March 1, June 1, September 1 and December 1 of each year (each a “Dividend
Payment Date”); provided that if any such Dividend Payment Date would otherwise occur on a day that
is not a Business Day, such Dividend Payment Date shall instead be (and any dividend payable on
Series E on such Dividend Payment Date shall instead be payable on) the immediately succeeding
Business Day. If a Dividend Payment Date prior to June 1, 2012 is not a Business Day, the
applicable dividend shall be paid on the first Business Day following that day without adjustment.
Dividends on Series E shall not be cumulative; holders of Series E shall not be entitled to receive
any dividends not declared by the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors) and no interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend not so declared.
Dividends that are payable on Series E on any Dividend Payment Date will be payable to holders
of record of Series E as they appear on the stock register of the Corporation on the applicable
record date, which shall be the 15th calendar day before such Dividend Payment Date or such other
record date fixed by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) that is not more than 60 nor less than 10 days prior to such Dividend
Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall
be a Dividend Record Date whether or not such day is a Business Day.
E-3
Each dividend period (a “Dividend Period”) shall commence on and include a Dividend Payment
Date (other than the initial Dividend Period, which shall commence on and include the date of
original issue of the Series E) and shall end on and include the calendar day next preceding the
next Dividend Payment Date. Dividends payable on the Series E in respect of a Dividend Period
shall be computed by the Calculation Agent (i) if shares of Series E are issued prior to June 1,2012, on the basis of a 360-day year consisting of twelve-30 day months until the Dividend Payment
Date in June 2012 and (ii) thereafter, on the basis of a 360-day year and the actual number of days
elapsed in such Dividend Period. Dividends payable in respect of a Dividend Period shall be
payable in arrears - i.e., on the first Dividend Payment Date after such Dividend Period.
The dividend rate on the Series E, for each Dividend Period, shall be (a) if the shares of
Series E are issued prior to June 1, 2012, a rate per annum equal to 5.793% until the Dividend
Payment date in June 2012, and (b) thereafter, a rate per annum that will reset quarterly and shall
be equal to the greater of (i) three-month LIBOR for such Dividend Period plus 0.7675% and (ii)
4.000%. Three-month LIBOR, with respect to any Dividend Period, means the offered rate expressed
as a percentage per annum for three-month deposits in U.S. dollars on the first day of such
Dividend Period, as that rate appears on Reuters Screen LIBOR01 (or any successor or replacement
page) as of 11:00 A.M., London time, on the second London Business Day immediately preceding the
first day of such Dividend Period.
If the rate described in the preceding paragraph does not appear on Reuters Screen LIBOR01(or
any successor or replacement page), LIBOR shall be determined on the basis of the rates, at
approximately 11:00 A.M., London time, on the second London Business Day immediately preceding the
first day of such Dividend Period, at which deposits of the following kind are offered to prime
banks in the London interbank market by four major banks in that market selected by the Calculation
Agent: three-month deposits in U.S. dollars, beginning on the first day of such Dividend Period,
and in a Representative Amount. The Calculation Agent shall request the principal London office of
each of these banks to provide a quotation of its rate at approximately 11:00 A.M., London time. If
at least two quotations are provided, LIBOR for such Dividend Period shall be the arithmetic mean
of such quotations.
If fewer than two quotations are provided as described in the preceding paragraph, LIBOR for
such Dividend Period shall be the arithmetic mean of the rates for loans of the following kind to
leading European banks quoted, at approximately 11:00 A.M. New York City time, on the second London
Business Day immediately preceding the first day of such Dividend Period, by three major banks in
New York City selected by the Calculation Agent: three-month loans of U.S. dollars, beginning on
the first day of such Dividend Period, and in a Representative Amount.
If fewer than three banks selected by the Calculation Agent are quoting as described in the
preceding paragraph, LIBOR for such Dividend Period shall be LIBOR in effect for the prior Dividend
Period.
E-4
The Calculation Agent’s determination of any dividend rate, and its calculation of the amount
of dividends for any Dividend Period, will be maintained on file at the Corporation’s principal
offices and will be available to any stockholder upon request and will be final and binding in the
absence of manifest error.
Holders of Series E shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and payable on the Series E as
specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(b) Priority of Dividends. So long as any share of Series E remains outstanding, no dividend
shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than a
dividend payable solely in Junior Stock), and no Common Stock or other Junior Stock shall be
purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior
Stock, or the exchange or conversion of one share of Junior Stock for or into another share of
Junior Stock and other than through the use of the proceeds of a substantially contemporaneous sale
of Junior Stock) during a Dividend Period, unless the full dividends for the latest completed
Dividend Period on all outstanding shares of Series E have been declared and paid (or declared and
a sum sufficient for the payment thereof has been set aside). The foregoing provision shall not
restrict the ability of Goldman, Sachs & Co., or any other affiliate of the Corporation, to engage
in any market-making transactions in Junior Stock in the ordinary course of business.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside)
on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates
different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend
Period) in full upon the Series E and any shares of Parity Stock, all dividends declared on the
Series E and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of
parity stock having dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend Payment Date) shall be
declared pro rata so that the respective amounts of such dividends shall bear the same ratio to
each other as all accrued but unpaid dividends per share on the Series E and all Parity Stock
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) bear to each other.
Subject to the foregoing, such dividends (payable in cash, securities or other property) as
may be determined by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) may be declared and paid on any securities, including Common Stock and
other Junior Stock, from time to time out of any funds legally available for such payment, and the
Series E shall not be entitled to participate in any such dividends.
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Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series E
shall be entitled to receive, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to stockholders of the Corporation, and after
satisfaction of all liabilities and obligations to creditors of the Corporation, before any
distribution of such assets or proceeds is made to or set aside for the holders of Common Stock and
any other stock of the Corporation ranking junior to the Series E as to such distribution, in full
an amount equal to $100,000 per share (the “Series E Liquidation Amount”), together with an amount
equal to all dividends (if any) that have been declared but not paid prior to the date of payment
of such distribution (but without any amount in respect of dividends that have not been declared
prior to such payment date).
(b) Partial Payment. If in any distribution described in Section 5(a) above the assets of the
Corporation or proceeds thereof are not sufficient to pay the Liquidation Preferences (as defined
below) in full to all holders of Series E and all holders of any stock of the Corporation ranking
equally with the Series E as to such distribution, the amounts paid to the holders of Series E and
to the holders of all such other stock shall be paid pro rata in accordance with the respective
aggregate Liquidation Preferences of the holders of Series E and the holders of all such other
stock. In any such distribution, the “Liquidation Preference” of any holder of stock of the
Corporation shall mean the amount otherwise payable to such holder in such distribution (assuming
no limitation on the assets of the Corporation available for such distribution), including an
amount equal to any declared but unpaid dividends (and, in the case of any holder of stock other
than Series E and on which dividends accrue on a cumulative basis, an amount equal to any unpaid,
accrued, cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all
holders of Series E, the holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their respective rights and
preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5,
the merger or consolidation of the Corporation with any other corporation or other entity,
including a merger or consolidation in which the holders of Series E receive cash, securities or
other property for their shares, or the sale, lease or exchange (for cash, securities or other
property) of all or substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
(a) Optional Redemption. The Series E may not be redeemed by the Corporation prior to the
later of June 1, 2012 and the date of original issue of Series E. On or after that date, the
Corporation, at its option, may redeem, in whole at any time or in part
E-6
from time to time, the shares of Series E at the time outstanding, upon notice given as
provided in Section 6(c) below, at a redemption price equal to $100,000 per share, together (except
as otherwise provided herein) with an amount equal to any dividends that have been declared but not
paid prior to the redemption date (but with no amount in respect of any dividends that have not
been declared prior to such date). The redemption price for any shares of Series E shall be
payable on the redemption date to the holder of such shares against surrender of the certificate(s)
evidencing such shares to the Corporation or its agent. Any declared but unpaid dividends payable
on a redemption date that occurs subsequent to the Dividend Record Date for a Dividend Period shall
not be paid to the holder entitled to receive the redemption price on the redemption date, but
rather shall be paid to the holder of record of the redeemed shares on such Dividend Record Date
relating to the Dividend Payment Date as provided in Section 4 above.
(b) No Sinking Fund. The Series E will not be subject to any mandatory redemption, sinking
fund or other similar provisions. Holders of Series E will have no right to require redemption of
any shares of Series E.
(c) Notice of Redemption. Notice of every redemption of shares of Series E shall be given by
first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses appearing on the books of the Corporation. Such mailing shall
be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice
mailed as provided in this Subsection shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice, but failure duly to give such notice by mail, or
any defect in such notice or in the mailing thereof, to any holder of shares of Series E designated
for redemption shall not affect the validity of the proceedings for the redemption of any other
shares of Series E. Notwithstanding the foregoing, if the Series E or any depositary shares
representing interests in the Series E are issued in book-entry form through The Depository Trust
Company or any other similar facility, notice of redemption may be given to the holders of Series E
at such time and in any manner permitted by such facility. Each such notice given to a holder
shall state: (1) the redemption date; (2) the number of shares of Series E to be redeemed and, if
less than all the shares held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the redemption price; and (4) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series E at
the time outstanding, the shares to be redeemed shall be selected either pro rata or in such other
manner as the Corporation may determine to be fair and equitable. Subject to the provisions
hereof, the Corporation shall have full power and authority to prescribe the terms and conditions
upon which shares of Series E shall be redeemed from time to time. If fewer than all the shares
represented by any certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or
before the redemption date specified in the notice all funds
E-7
necessary for the redemption have been set aside by the Corporation, separate and apart from
its other funds, in trust for the pro rata benefit of the holders of the shares called for
redemption, so as to be and continue to be available therefor, then, notwithstanding that any
certificate for any share so called for redemption has not been surrendered for cancellation, on
and after the redemption date dividends shall cease to accrue on all shares so called for
redemption, all shares so called for redemption shall no longer be deemed outstanding and all
rights with respect to such shares shall forthwith on such redemption date cease and terminate,
except only the right of the holders thereof to receive the amount payable on such redemption,
without interest. Any funds unclaimed at the end of three years from the redemption date shall, to
the extent permitted by law, be released to the Corporation, after which time the holders of the
shares so called for redemption shall look only to the Corporation for payment of the redemption
price of such shares.
Section 7. Conversion Upon Regulatory Changes. If both (i) and (ii) below occur:
(i) after the date of the issuance of the Series E, the Corporation (by election or
otherwise) becomes subject to any law, rule, regulation or guidance (together,
“Regulations”) relating to its capital adequacy, which Regulation (x) modifies the existing
requirements for treatment as Allowable Capital (as defined under the Securities and
Exchange Commission rules relating to consolidated supervised entities as in effect from
time to time), (y) provides for a type or level of capital characterized as “Tier 1” or its
equivalent pursuant to Regulations of any governmental agency, authority or other body
having regulatory jurisdiction over the Corporation (or any of its subsidiaries or
consolidated affiliates) and implementing the capital standards published by the Basel
Committee on Banking Supervision, the Securities and Exchange Commission, the Board of
Governors of the Federal Reserve System or any other United States national governmental
agency, authority or other body, or any other applicable regime based on capital standards
published by the Basel Committee on Banking Supervision or its successor, or (z) provides
for a type or level of capital that in the judgment of the Corporation (after consultation
with legal counsel of recognized standing) is substantially equivalent to such “Tier 1”
capital (such capital described in either (y) or (z) above is referred to below as “Tier 1
Capital Equivalent”), and
(ii) the Corporation affirmatively elects to qualify the Series E for treatment as
Allowable Capital or Tier 1 Capital Equivalent without any sublimit or other quantitative
restriction on the inclusion of the Series E in Allowable Capital or Tier 1 Capital
Equivalent (other than any limitation the Corporation elects to accept and any limitation
requiring that common equity or a specified form of common equity constitute the dominant
form of Allowable Capital or Tier 1 Capital Equivalent) under such Regulations,
then, upon such affirmative election, the Series E shall be convertible at the Corporation’s option
into a new series of Preferred Stock having terms and provisions substantially identical to those
of the Series E, except that such new series may have such additional or modified rights,
preferences, privileges and voting powers, and limitations and restrictions
E-8
thereof, as are necessary in the judgment of the Board of Directors or the Committee (or another
duly authorized committee of the Board of Directors) (after consultation with legal counsel of
recognized standing) to comply with the Required Unrestricted Capital Provisions (as defined
below), provided that the Corporation will not cause any such conversion unless the Board of
Directors or the Committee (or another duly authorized committee of the Board of Directors)
determines that the rights, preferences, privileges and voting powers, and the qualifications,
limitations and restrictions thereof, of such new series of Preferred Stock, taken as a whole, are
not materially less favorable to the holders thereof than the rights, preferences, privileges and
voting powers, and the qualifications, limitations and restrictions thereof, of the Series E, taken
as a whole.
As used above, the term “Required Unrestricted Capital Provisions” means such terms and
provisions as are, in the judgment of the Corporation (after consultation with counsel of
recognized standing), required for preferred stock to be treated as Allowable Capital or Tier 1
Capital Equivalent, as applicable, without any sublimit or other quantitative restriction on the
inclusion of such preferred stock in Allowable Capital or Tier 1 Capital Equivalent, as applicable
(other than any limitation the Corporation elects to accept and any limitation requiring that
common equity or a specified form of common equity constitute the dominant form of Allowable
Capital or Tier 1 Capital Equivalent) pursuant to the applicable Regulations.
The Corporation shall provide notice to the holders of Series E of any election to qualify the
Series E for Allowable Capital or Tier 1 Capital Equivalent treatment and of any determination to
convert the Series E into a new series of Preferred Stock pursuant to the terms of this Section 7,
promptly upon the effectiveness of any such election or determination. A copy of such notice and of
the relevant Regulations shall be maintained on file at the principal offices of the Corporation
and, upon request, will be made available to any stockholder of the Corporation. Any conversion of
the Series E pursuant to this Section 7 shall be effected pursuant to such procedures as the
Corporation may determine and publicly disclose.
Except as specified in this Section 7, holders of Series E shares shall have no right to
exchange or convert such shares into any other securities.
Section 8. Voting Rights.
(a) General. The holders of Series E shall not have any voting rights except as set forth
below or as otherwise from to time required by law.
(b) Right To Elect Two Directors Upon Nonpayment Events. If and whenever dividends on any
shares of Series E shall not have been declared and paid for Dividend Periods, whether or not
consecutive, equivalent to at least eighteen months (a “Nonpayment Event”), the number of directors
then constituting the Board of Directors shall automatically be increased by two and the holders of
Series E, together with the holders of any outstanding shares of Voting Preferred Stock, voting
together as a single class, shall be entitled to elect the two additional directors (the “Preferred
Stock Directors”), provided that it shall be a qualification for election for any such Preferred
Stock Director that the election of such director shall not cause the Corporation to violate
E-9
the corporate governance requirement of the New York Stock Exchange (or any other securities
exchange or other trading facility on which securities of the Corporation may then be listed or
traded) that listed or traded companies must have a majority of independent directors and provided
further that the Board of Directors shall at no time include more than two Preferred Stock
Directors (including, for purposes of this limitation, all directors that the holders of any series
of Voting Preferred Stock are entitled to elect pursuant to like voting rights).
In the event that the holders of the Series E, and such other holders of Voting Preferred
Stock, shall be entitled to vote for the election of the Preferred Stock Directors following a
Nonpayment Event, such directors shall be initially elected following such Nonpayment Event only at
a special meeting called at the request of the holders of record of at least 20% of the Series E or
of any other series of Voting Preferred Stock then outstanding (unless such request for a special
meeting is received less than 90 days before the date fixed for the next annual or special meeting
of the stockholders of the Corporation, in which event such election shall be held only at such
next annual or special meeting of stockholders), and at each subsequent annual meeting of
stockholders of the Corporation. Such request to call a special meeting for the initial election
of the Preferred Stock Directors after a Nonpayment Event shall be made by written notice, signed
by the requisite holders of Series E or Voting Preferred Stock, and delivered to the Secretary of
the Corporation in such manner as provided for in Section 10 below, or as may otherwise be required
by law.
When dividends have been paid (or declared and a sum sufficient for payment thereof set aside)
in full on the Series E for Dividend Periods, whether or not consecutive, equivalent to at least
one year after a Nonpayment Event, then the right of the holders of Series E to elect the Preferred
Stock Directors shall cease (but subject always to revesting of such voting rights in the case of
any future Nonpayment Event), and, if and when any rights of holders of Series E and Voting
Preferred Stock to elect the Preferred Stock Directors shall have ceased, the terms of office of
all the Preferred Stock Directors shall forthwith terminate and the number of directors
constituting the Board of Directors shall automatically be reduced accordingly.
Any Preferred Stock Director may be removed at any time without cause by the holders of record
of a majority of the outstanding shares of the Series E and Voting Preferred Stock, when they have
the voting rights described above (voting together as a single class). So long as a Nonpayment
Event shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to
the initial election of Preferred Stock Directors after a Nonpayment Event) may be filled by the
written consent of the Preferred Stock Director remaining in office, or if none remains in office,
by a vote of the holders of record of a majority of the outstanding shares of the Series E and all
Voting Preferred Stock, when they have the voting rights described above (voting together as a
single class). Any such vote of stockholders to remove, or to fill a vacancy in the office of, a
Preferred Stock Director may be taken only at a special meeting of such stockholders, called as
provided above for an initial election of Preferred Stock Director after a Nonpayment Event (unless
such request is received less than 90 days before the date fixed for the next annual or special
meeting of the stockholders, in which event such election shall be held at
E-10
such next annual or special meeting of stockholders). The Preferred Stock Directors shall
each be entitled to one vote per director on any matter that shall come before the Board of
Directors for a vote. Each Preferred Stock Director elected at any special meeting of stockholders
or by written consent of the other Preferred Stock Director shall hold office until the next annual
meeting of the stockholders if such office shall not have previously terminated as above provided.
(c) Other Voting Rights. So long as any shares of Series E are outstanding, in addition to
any other vote or consent of stockholders required by law or by the Certificate of Incorporation,
the vote or consent of the holders of at least 66⅔% of the shares of Series E and any Voting
Preferred Stock at the time outstanding and entitled to vote thereon, voting together as a single
class, given in person or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Certificate of
Incorporation to authorize or create, or increase the authorized amount of, any shares of
any class or series of capital stock of the Corporation ranking senior to the Series E with
respect to either or both the payment of dividends and/or the distribution of assets on any
liquidation, dissolution or winding up of the Corporation;
(ii) Amendment of Series E. Any amendment, alteration or repeal of any provision of
the Certificate of Incorporation so as to materially and adversely affect the special
rights, preferences, privileges or voting powers of the Series E, taken as a whole; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Any
consummation of a binding share exchange or reclassification involving the Series E, or of
a merger or consolidation of the Corporation with another corporation or other entity,
unless in each case (x) the shares of Series E remain outstanding or, in the case of any
such merger or consolidation with respect to which the Corporation is not the surviving or
resulting entity, are converted into or exchanged for preference securities of the
surviving or resulting entity or its ultimate parent, and (y) such shares remaining
outstanding or such preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, taken
as a whole, as are not materially less favorable to the holders thereof than the rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, of the
Series E immediately prior to such consummation, taken as a whole;
provided, however, that for all purposes of this Section 8(c), any increase in the amount of the
authorized or issued Series E or authorized Preferred Stock, or the creation and issuance, or an
increase in the authorized or issued amount, of any other series of Preferred Stock ranking equally
with and/or junior to the Series E with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative) and/or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation will
E-11
not be deemed to adversely affect the rights, preferences, privileges or voting powers of the
Series E. In addition, any conversion of the Series E pursuant to Section 7 above shall not be
deemed to adversely affect the rights, preferences, privileges and voting powers of the Series E.
If any amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 7(c) would adversely affect the Series E and one or more
but not all other series of Preferred Stock, then only the Series E and such series of Preferred
Stock as are adversely affected by and entitled to vote on the matter shall vote on the matter
together as a single class (in lieu of all other series of Preferred Stock).
(d) Changes for Clarification. Without the consent of the holders of the Series E, so long as
such action does not adversely affect the rights, preferences, privileges and voting powers, and
limitations and restrictions thereof, of the Series E, the Corporation may amend, alter, supplement
or repeal any terms of the Series E:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this
Certificate of Designations that may be defective or inconsistent; or
(ii) to make any provision with respect to matters or questions arising with respect to the
Series E that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision for Redemption. No vote or consent of the holders of Series E
shall be required pursuant to Section 8(b), (c) or (d) above if, at or prior to the time when any
such vote or consent would otherwise be required pursuant to such Section, all outstanding shares
of Series E shall have been redeemed, or shall have been called for redemption upon proper notice
and sufficient funds shall have been set aside for such redemption, in each case pursuant to
Section 6 above.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting
any meeting of the holders of Series E (including, without limitation, the fixing of a record date
in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of
written consents and any other aspect or matter with regard to such a meeting or such consents
shall be governed by any rules the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors), in its discretion, may adopt from time to time, which rules
and procedures shall conform to the requirements of the Certificate of Incorporation, the Bylaws,
applicable law and any national securities exchange or other trading facility on which the Series E
is listed or traded at the time. Whether the vote or consent of the holders of a plurality,
majority or other portion of the shares of Series E and any Voting Preferred Stock has been cast or
given on any matter on which the holders of shares of Series E are entitled to vote shall be
determined by the Corporation by reference to the specified liquidation amounts of the shares voted
or covered by the consent.
Section 9. Record Holders. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for the Series E may deem and treat
E-12
the record holder of any share of Series E as the true and lawful owner thereof for all
purposes, and neither the Corporation nor such transfer agent shall be affected by any notice to
the contrary.
Section 10. Notices. All notices or communications in respect of Series E shall be
sufficiently given if given in writing and delivered in person or by first class mail, postage
prepaid, or if given in such other manner as may be permitted in this Certificate of Designations,
in the Certificate of Incorporation or Bylaws or by applicable law.
Section 11. No Preemptive Rights. No share of Series E shall have any rights of preemption
whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or
granted with respect thereto, regardless of how such securities, or such warrants, rights or
options, may be designated, issued or granted.
Section 12. Other Rights. The shares of Series E shall not have any voting powers,
preferences or relative, participating, optional or other special rights, or qualifications,
limitations or restrictions thereof, other than as set forth herein or in the Certificate of
Incorporation or as provided by applicable law.
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Appendix F
CERTIFICATE OF DESIGNATIONS
OF
PERPETUAL NON-CUMULATIVE PREFERRED STOCK, SERIES F
OF
THE GOLDMAN SACHS GROUP, INC.
THE GOLDMAN SACHS GROUP, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of
Sections 103 and 151 thereof, DOES HEREBY CERTIFY:
The Securities Issuance Committee (the “Committee”) of the board of directors of the
Corporation (the “Board of Directors”), in accordance with the resolutions of the Board of
Directors dated September 16, 2005 and September 29, 2006, the provisions of the restated
certificate of incorporation and the amended and restated bylaws of the Corporation and applicable
law, by unanimous written consent dated May 14, 2007, adopted the following resolution creating a
series of 5,000.1 shares of Preferred Stock of the Corporation designated as “Perpetual
Non-Cumulative Preferred Stock, Series F”.
RESOLVED, that pursuant to the authority vested in the Committee and in accordance with the
resolutions of the Board of Directors dated September 16, 2005 and September 29, 2006, the
provisions of the restated certificate of incorporation and the amended and restated bylaws of the
Corporation and applicable law, a series of Preferred Stock, par value $.01 per share, of the
Corporation be and hereby is created, and that the designation and number of shares of such series,
and the voting and other powers, preferences and relative, participating, optional or other rights,
and the qualifications, limitations and restrictions thereof, of the shares of such series, are as
follows:
Section 1. Designation. The distinctive serial designation of such series of Preferred Stock
is “Perpetual Non-Cumulative Preferred Stock, Series F” (“Series F”). Each share of Series F shall
be identical in all respects to every other share of Series F.
Section 2. Number of Shares. The authorized number of shares of Series F shall be 5,000.1.
Shares of Series F that are redeemed, purchased or otherwise acquired by the Corporation, or
converted into another series of Preferred Stock, shall be cancelled and shall revert to authorized
but unissued shares of Series F.
Section 3. Definitions. As used herein with respect to Series F:
(a) “Board of Directors” means the board of directors of the Corporation.
(b) “ByLaws” means the amended and restated bylaws of the Corporation, as they may be
amended from time to time.
(c) “Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or
Friday and is not a day on which banking institutions in New York City generally are
authorized or obligated by law, regulation or executive order to close.
(d) “Calculation Agent” means, at any time, the person or entity appointed by the
Corporation and serving as such agent at such time. The Corporation may terminate any such
appointment and may appoint a successor agent at any time and from time to time, provided
that the Corporation shall use its best efforts to ensure that there is, at all relevant
times when the Series F is outstanding, a person or entity appointed and serving as such
agent. The Calculation Agent may be a person or entity affiliated with the Corporation.
(e) “Certificate of Designations” means this Certificate of Designations relating to
the Series F, as it may be amended from time to time.
(f) “Certification of Incorporation” shall mean the restated certificate of
incorporation of the Corporation, as it may be amended from time to time, and shall include
this Certificate of Designations.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the
Corporation.
(h) “Junior Stock” means the Common Stock and any other class or series of stock of
the Corporation (other than Series F) that ranks junior to Series F either or both as to
the payment of dividends and/or as to the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
(i) “London Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday
or Friday and is a day on which dealings in U.S. dollars are transacted in the London
interbank market.
(j) “Parity Stock” means any class or series of stock of the Corporation (other than
Series F) that ranks equally with Series F both in the payment of dividends and in the
distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(k) “Preferred Stock” means any and all series of Preferred Stock, having a par value
of $0.01 per share, of the Corporation, including the Series F.
(l) “Representative Amount” means, at any time, an amount that, in the Calculation
Agent’s judgment, is representative of a single transaction in the relevant market at the
relevant time.
F-2
(m) “Reuters Screen LIBOR01” means the display designated on the Reuters 3000 Xtra (or
such other page as may replace that page on that service or such other service as may be
nominated by the British Bankers’ Association for the purpose of displaying London
interbank offered rates for U.S. Dollar deposits).
(n) “Voting Preferred Stock” means, with regard to any election or removal of a
Preferred Stock Director (as defined in Section 8(b) below) or any other matter as to which
the holders of Series F are entitled to vote as specified in Section 8 of this Certificate
of Designations, any and all series of Preferred Stock (other than Series F) that rank
equally with Series F either as to the payment of dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Corporation and upon which like
voting rights have been conferred and are exercisable with respect to such matter.
Section 4. Dividends.
(a) Rate. Holders of Series F shall be entitled to receive, when, as and if declared by the
Board of Directors or the Committee (or another duly authorized committee of the Board of
Directors) out of funds legally available for the payment of dividends under Delaware law,
non-cumulative cash dividends at the rate determined as set forth below in this Section (4) applied
to the liquidation preference amount of $100,000 per share of Series F. Such dividends shall be
payable quarterly in arrears (as provided below in this Section 4(a)), but only when, as and if
declared by the Board of Directors or the Committee (or another duly authorized committee of the
Board of Directors), on March 1, June 1, September 1 and December 1 of each year (each a “Dividend
Payment Date”); provided that if any such Dividend Payment Date would otherwise occur on a day that
is not a Business Day, such Dividend Payment Date shall instead be (and any dividend payable on
Series F on such Dividend Payment Date shall instead be payable on) the immediately succeeding
Business Day. If a Dividend Payment Date is not a Business Day, the applicable dividend shall be
paid on the first Business Day following that day. Dividends on Series F shall not be cumulative;
holders of Series F shall not be entitled to receive any dividends not declared by the Board of
Directors or the Committee (or another duly authorized committee of the Board of Directors) and no
interest, or sum of money in lieu of interest, shall be payable in respect of any dividend not so
declared.
Dividends that are payable on Series F on any Dividend Payment Date will be payable to holders
of record of Series F as they appear on the stock register of the Corporation on the applicable
record date, which shall be the 15th calendar day before such Dividend Payment Date or such other
record date fixed by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) that is not more than 60 nor less than 10 days prior to such Dividend
Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall
be a Dividend Record Date whether or not such day is a Business Day.
F-3
Each dividend period (a “Dividend Period”) shall commence on and include a Dividend Payment
Date (other than the initial Dividend Period, which shall commence on and include the date of
original issue of the Series F) and shall end on and include the calendar day next preceding the
next Dividend Payment Date. Dividends payable on the Series F in respect of any Dividend Period
shall be computed by the Calculation Agent on the basis of a 360-day year and the actual number of
days elapsed in such Dividend Period. Dividends payable in respect of a Dividend Period shall be
payable in arrears - i.e., on the first Dividend Payment Date after such Dividend Period.
The dividend rate on the Series F, for each Dividend Period, shall be (a) if the shares of
Series F are issued prior to September 1, 2012, a rate per annum equal to three-month LIBOR plus
0.77% until the Dividend Payment date in September 2012, and (b) thereafter, a rate per annum that
will reset quarterly and shall be equal to the greater of (i) three-month LIBOR for such Dividend
Period plus 0.77% and (ii) 4.000%. Three-month LIBOR, with respect to any Dividend Period, means
the offered rate expressed as a percentage per annum for three-month deposits in U.S. dollars on
the first day of such Dividend Period, as that rate appears on Reuters Screen LIBOR01 (or any
successor or replacement page) as of 11:00 A.M., London time, on the second London Business Day
immediately preceding the first day of such Dividend Period.
If the rate described in the preceding paragraph does not appear on Reuters Screen LIBOR01(or
any successor or replacement page), LIBOR shall be determined on the basis of the rates, at
approximately 11:00 A.M., London time, on the second London Business Day immediately preceding the
first day of such Dividend Period, at which deposits of the following kind are offered to prime
banks in the London interbank market by four major banks in that market selected by the Calculation
Agent: three-month deposits in U.S. dollars, beginning on the first day of such Dividend Period,
and in a Representative Amount. The Calculation Agent shall request the principal London office of
each of these banks to provide a quotation of its rate at approximately 11:00 A.M., London time. If
at least two quotations are provided, LIBOR for such Dividend Period shall be the arithmetic mean
of such quotations.
If fewer than two quotations are provided as described in the preceding paragraph, LIBOR for
such Dividend Period shall be the arithmetic mean of the rates for loans of the following kind to
leading European banks quoted, at approximately 11:00 A.M. New York City time, on the second London
Business Day immediately preceding the first day of such Dividend Period, by three major banks in
New York City selected by the Calculation Agent: three-month loans of U.S. dollars, beginning on
the first day of such Dividend Period, and in a Representative Amount.
If fewer than three banks selected by the Calculation Agent are quoting as described in the
preceding paragraph, LIBOR for such Dividend Period shall be LIBOR in effect for the prior Dividend
Period.
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The Calculation Agent’s determination of any dividend rate, and its calculation of the amount
of dividends for any Dividend Period, will be maintained on file at the Corporation’s principal
offices and will be available to any stockholder upon request and will be final and binding in the
absence of manifest error.
Holders of Series F shall not be entitled to any dividends, whether payable in cash,
securities or other property, other than dividends (if any) declared and payable on the Series F as
specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(b) Priority of Dividends. So long as any share of Series F remains outstanding, no dividend
shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than a
dividend payable solely in Junior Stock), and no Common Stock or other Junior Stock shall be
purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior
Stock, or the exchange or conversion of one share of Junior Stock for or into another share of
Junior Stock and other than through the use of the proceeds of a substantially contemporaneous sale
of Junior Stock) during a Dividend Period, unless the full dividends for the latest completed
Dividend Period on all outstanding shares of Series F have been declared and paid (or declared and
a sum sufficient for the payment thereof has been set aside). The foregoing provision shall not
restrict the ability of Goldman, Sachs & Co., or any other affiliate of the Corporation, to engage
in any market-making transactions in Junior Stock in the ordinary course of business.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside)
on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates
different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend
Period) in full upon the Series F and any shares of Parity Stock, all dividends declared on the
Series F and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of
parity stock having dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend Payment Date) shall be
declared pro rata so that the respective amounts of such dividends shall bear the same ratio to
each other as all accrued but unpaid dividends per share on the Series F and all Parity Stock
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates, on a dividend payment date falling within the
Dividend Period related to such Dividend Payment Date) bear to each other.
Subject to the foregoing, such dividends (payable in cash, securities or other property) as
may be determined by the Board of Directors or the Committee (or another duly authorized committee
of the Board of Directors) may be declared and paid on any securities, including Common Stock and
other Junior Stock, from time to time out of any funds legally available for such payment, and the
Series F shall not be entitled to participate in any such dividends.
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Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series F
shall be entitled to receive, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to stockholders of the Corporation, and after
satisfaction of all liabilities and obligations to creditors of the Corporation, before any
distribution of such assets or proceeds is made to or set aside for the holders of Common Stock and
any other stock of the Corporation ranking junior to the Series F as to such distribution, in full
an amount equal to $100,000 per share (the “Series F Liquidation Amount”), together with an amount
equal to all dividends (if any) that have been declared but not paid prior to the date of payment
of such distribution (but without any amount in respect of dividends that have not been declared
prior to such payment date).
(b) Partial Payment. If in any distribution described in Section 5(a) above the assets of the
Corporation or proceeds thereof are not sufficient to pay the Liquidation Preferences (as defined
below) in full to all holders of Series F and all holders of any stock of the Corporation ranking
equally with the Series F as to such distribution, the amounts paid to the holders of Series F and
to the holders of all such other stock shall be paid pro rata in accordance with the respective
aggregate Liquidation Preferences of the holders of Series F and the holders of all such other
stock. In any such distribution, the “Liquidation Preference” of any holder of stock of the
Corporation shall mean the amount otherwise payable to such holder in such distribution (assuming
no limitation on the assets of the Corporation available for such distribution), including an
amount equal to any declared but unpaid dividends (and, in the case of any holder of stock other
than Series F and on which dividends accrue on a cumulative basis, an amount equal to any unpaid,
accrued, cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all
holders of Series F, the holders of other stock of the Corporation shall be entitled to receive all
remaining assets of the Corporation (or proceeds thereof) according to their respective rights and
preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5,
the merger or consolidation of the Corporation with any other corporation or other entity,
including a merger or consolidation in which the holders of Series F receive cash, securities or
other property for their shares, or the sale, lease or exchange (for cash, securities or other
property) of all or substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.
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Section 6. Redemption.
(a) Optional Redemption. The Series F may not be redeemed by the Corporation prior to the
later of September 1, 2012 and the date of original issue of Series F. On or after that date, the
Corporation, at its option, may redeem, in whole at any time or in part from time to time, the
shares of Series F at the time outstanding, upon notice given as provided in Section 6(c) below, at
a redemption price equal to $100,000 per share, together (except as otherwise provided herein) with
an amount equal to any dividends that have been declared but not paid prior to the redemption date
(but with no amount in respect of any dividends that have not been declared prior to such date).
The redemption price for any shares of Series F shall be payable on the redemption date to the
holder of such shares against surrender of the certificate(s) evidencing such shares to the
Corporation or its agent. Any declared but unpaid dividends payable on a redemption date that
occurs subsequent to the Dividend Record Date for a Dividend Period shall not be paid to the holder
entitled to receive the redemption price on the redemption date, but rather shall be paid to the
holder of record of the redeemed shares on such Dividend Record Date relating to the Dividend
Payment Date as provided in Section 4 above.
(b) No Sinking Fund. The Series F will not be subject to any mandatory redemption, sinking
fund or other similar provisions. Holders of Series F will have no right to require redemption of
any shares of Series F.
(c) Notice of Redemption. Notice of every redemption of shares of Series F shall be given by
first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed
at their respective last addresses appearing on the books of the Corporation. Such mailing shall
be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice
mailed as provided in this Subsection shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice, but failure duly to give such notice by mail, or
any defect in such notice or in the mailing thereof, to any holder of shares of Series F designated
for redemption shall not affect the validity of the proceedings for the redemption of any other
shares of Series F. Notwithstanding the foregoing, if the Series F or any depositary shares
representing interests in the Series F are issued in book-entry form through The Depository Trust
Company or any other similar facility, notice of redemption may be given to the holders of Series F
at such time and in any manner permitted by such facility. Each such notice given to a holder
shall state: (1) the redemption date; (2) the number of shares of Series F to be redeemed and, if
less than all the shares held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the redemption price; and (4) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series F at
the time outstanding, the shares to be redeemed shall be selected either pro rata or in such other
manner as the Corporation may determine to be fair and equitable. Subject to the provisions
hereof, the Corporation shall have full power and authority to
F-7
prescribe the terms and conditions upon which shares of Series F shall be redeemed from time
to time. If fewer than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without charge to the holder
thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or
before the redemption date specified in the notice all funds necessary for the redemption have been
set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata
benefit of the holders of the shares called for redemption, so as to be and continue to be
available therefor, then, notwithstanding that any certificate for any share so called for
redemption has not been surrendered for cancellation, on and after the redemption date dividends
shall cease to accrue on all shares so called for redemption, all shares so called for redemption
shall no longer be deemed outstanding and all rights with respect to such shares shall forthwith on
such redemption date cease and terminate, except only the right of the holders thereof to receive
the amount payable on such redemption, without interest. Any funds unclaimed at the end of three
years from the redemption date shall, to the extent permitted by law, be released to the
Corporation, after which time the holders of the shares so called for redemption shall look only to
the Corporation for payment of the redemption price of such shares.
Section 7. Conversion Upon Regulatory Changes. If both (i) and (ii) below occur:
(i) after the date of the issuance of the Series F, the Corporation (by election or
otherwise) becomes subject to any law, rule, regulation or guidance (together,
“Regulations”) relating to its capital adequacy, which Regulation (x) modifies the existing
requirements for treatment as Allowable Capital (as defined under the Securities and
Exchange Commission rules relating to consolidated supervised entities as in effect from
time to time), (y) provides for a type or level of capital characterized as “Tier 1” or its
equivalent pursuant to Regulations of any governmental agency, authority or other body
having regulatory jurisdiction over the Corporation (or any of its subsidiaries or
consolidated affiliates) and implementing the capital standards published by the Basel
Committee on Banking Supervision, the Securities and Exchange Commission, the Board of
Governors of the Federal Reserve System or any other United States national governmental
agency, authority or other body, or any other applicable regime based on capital standards
published by the Basel Committee on Banking Supervision or its successor, or (z) provides
for a type or level of capital that in the judgment of the Corporation (after consultation
with legal counsel of recognized standing) is substantially equivalent to such “Tier 1”
capital (such capital described in either (y) or (z) above is referred to below as “Tier 1
Capital Equivalent”), and
(ii) the Corporation affirmatively elects to qualify the Series F for treatment as
Allowable Capital or Tier 1 Capital Equivalent without any sublimit or other quantitative
restriction on the inclusion of the Series F in Allowable Capital
F-8
or Tier 1 Capital Equivalent (other than any limitation the Corporation elects to
accept and any limitation requiring that common equity or a specified form of common equity
constitute the dominant form of Allowable Capital or Tier 1 Capital Equivalent) under such
Regulations,
then, upon such affirmative election, the Series F shall be convertible at the Corporation’s option
into a new series of Preferred Stock having terms and provisions substantially identical to those
of the Series F, except that such new series may have such additional or modified rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, as are
necessary in the judgment of the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors) (after consultation with legal counsel of recognized standing)
to comply with the Required Unrestricted Capital Provisions (as defined below), provided that the
Corporation will not cause any such conversion unless the Board of Directors or the Committee (or
another duly authorized committee of the Board of Directors) determines that the rights,
preferences, privileges and voting powers, and the qualifications, limitations and restrictions
thereof, of such new series of Preferred Stock, taken as a whole, are not materially less favorable
to the holders thereof than the rights, preferences, privileges and voting powers, and the
qualifications, limitations and restrictions thereof, of the Series F, taken as a whole.
As used above, the term “Required Unrestricted Capital Provisions” means such terms and
provisions as are, in the judgment of the Corporation (after consultation with counsel of
recognized standing), required for preferred stock to be treated as Allowable Capital or Tier 1
Capital Equivalent, as applicable, without any sublimit or other quantitative restriction on the
inclusion of such preferred stock in Allowable Capital or Tier 1 Capital Equivalent, as applicable
(other than any limitation the Corporation elects to accept and any limitation requiring that
common equity or a specified form of common equity constitute the dominant form of Allowable
Capital or Tier 1 Capital Equivalent) pursuant to the applicable Regulations.
The Corporation shall provide notice to the holders of Series F of any election to qualify the
Series F for Allowable Capital or Tier 1 Capital Equivalent treatment and of any determination to
convert the Series F into a new series of Preferred Stock pursuant to the terms of this Section 7,
promptly upon the effectiveness of any such election or determination. A copy of such notice and of
the relevant Regulations shall be maintained on file at the principal offices of the Corporation
and, upon request, will be made available to any stockholder of the Corporation. Any conversion of
the Series F pursuant to this Section 7 shall be effected pursuant to such procedures as the
Corporation may determine and publicly disclose.
Except as specified in this Section 7, holders of Series F shares shall have no right to
exchange or convert such shares into any other securities.
F-9
Section 8. Voting Rights.
(a) General. The holders of Series F shall not have any voting rights except as set forth
below or as otherwise from to time required by law.
(b) Right To Elect Two Directors Upon Nonpayment Events. If and whenever dividends on any
shares of Series F shall not have been declared and paid for at least six Dividend Periods, whether
or not consecutive (a “Nonpayment Event”), the number of directors then constituting the Board of
Directors shall automatically be increased by two and the holders of Series F, together with the
holders of any outstanding shares of Voting Preferred Stock, voting together as a single class,
shall be entitled to elect the two additional directors (the “Preferred Stock Directors”), provided
that it shall be a qualification for election for any such Preferred Stock Director that the
election of such director shall not cause the Corporation to violate the corporate governance
requirement of the New York Stock Exchange (or any other securities exchange or other trading
facility on which securities of the Corporation may then be listed or traded) that listed or traded
companies must have a majority of independent directors and provided further that the Board of
Directors shall at no time include more than two Preferred Stock Directors (including, for purposes
of this limitation, all directors that the holders of any series of Voting Preferred Stock are
entitled to elect pursuant to like voting rights).
In the event that the holders of the Series F, and such other holders of Voting Preferred
Stock, shall be entitled to vote for the election of the Preferred Stock Directors following a
Nonpayment Event, such directors shall be initially elected following such Nonpayment Event only at
a special meeting called at the request of the holders of record of at least 20% of the Series F or
of any other series of Voting Preferred Stock then outstanding (unless such request for a special
meeting is received less than 90 days before the date fixed for the next annual or special meeting
of the stockholders of the Corporation, in which event such election shall be held only at such
next annual or special meeting of stockholders), and at each subsequent annual meeting of
stockholders of the Corporation. Such request to call a special meeting for the initial election
of the Preferred Stock Directors after a Nonpayment Event shall be made by written notice, signed
by the requisite holders of Series F or Voting Preferred Stock, and delivered to the Secretary of
the Corporation in such manner as provided for in Section 10 below, or as may otherwise be required
by law.
When dividends have been paid (or declared and a sum sufficient for payment thereof set aside)
in full on the Series F for at least four Dividend Periods (whether or not consecutive) after a
Nonpayment Event, then the right of the holders of Series F to elect the Preferred Stock Directors
shall cease (but subject always to revesting of such voting rights in the case of any future
Nonpayment Event), and, if and when any rights of holders of Series F and Voting Preferred Stock to
elect the Preferred Stock Directors shall have ceased, the terms of office of all the Preferred
Stock Directors shall forthwith terminate and the number of directors constituting the Board of
Directors shall automatically be reduced accordingly.
F-10
Any Preferred Stock Director may be removed at any time without cause by the holders of record
of a majority of the outstanding shares of the Series F and Voting Preferred Stock, when they have
the voting rights described above (voting together as a single class). So long as a Nonpayment
Event shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to
the initial election of Preferred Stock Directors after a Nonpayment Event) may be filled by the
written consent of the Preferred Stock Director remaining in office, or if none remains in office,
by a vote of the holders of record of a majority of the outstanding shares of the Series F and all
Voting Preferred Stock, when they have the voting rights described above (voting together as a
single class). Any such vote of stockholders to remove, or to fill a vacancy in the office of, a
Preferred Stock Director may be taken only at a special meeting of such stockholders, called as
provided above for an initial election of Preferred Stock Director after a Nonpayment Event (unless
such request is received less than 90 days before the date fixed for the next annual or special
meeting of the stockholders, in which event such election shall be held at such next annual or
special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter that shall come before the Board of Directors for a vote. Each Preferred
Stock Director elected at any special meeting of stockholders or by written consent of the other
Preferred Stock Director shall hold office until the next annual meeting of the stockholders if
such office shall not have previously terminated as above provided.
(c) Other Voting Rights. So long as any shares of Series F are outstanding, in addition to
any other vote or consent of stockholders required by law or by the Certificate of Incorporation,
the vote or consent of the holders of at least 66⅔% of the shares of Series F and any Voting
Preferred Stock at the time outstanding and entitled to vote thereon, voting together as a single
class, given in person or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Certificate of
Incorporation to authorize or create, or increase the authorized amount of, any shares of
any class or series of capital stock of the Corporation ranking senior to the Series F with
respect to either or both the payment of dividends and/or the distribution of assets on any
liquidation, dissolution or winding up of the Corporation;
(ii) Amendment of Series F. Any amendment, alteration or repeal of any provision of
the Certificate of Incorporation so as to materially and adversely affect the special
rights, preferences, privileges or voting powers of the Series F, taken as a whole; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations. Any
consummation of a binding share exchange or reclassification involving the Series F, or of
a merger or consolidation of the Corporation with another corporation or other entity,
unless in each case (x) the
F-11
shares of Series F remain outstanding or, in the case of any such merger or
consolidation with respect to which the Corporation is not the surviving or resulting
entity, are converted into or exchanged for preference securities of the surviving or
resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such
preference securities, as the case may be, have such rights, preferences, privileges and
voting powers, and limitations and restrictions thereof, taken as a whole, as are not
materially less favorable to the holders thereof than the rights, preferences, privileges
and voting powers, and limitations and restrictions thereof, of the Series F immediately
prior to such consummation, taken as a whole;
provided, however, that for all purposes of this Section 8(c), any increase in the amount of the
authorized or issued Series F or authorized Preferred Stock, or the creation and issuance, or an
increase in the authorized or issued amount, of any other series of Preferred Stock ranking equally
with and/or junior to the Series F with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative) and/or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers of the Series F. In addition, any conversion of the Series F pursuant
to Section 7 above shall not be deemed to adversely affect the rights, preferences, privileges and
voting powers of the Series F.
If any amendment, alteration, repeal, share exchange, reclassification, merger or
consolidation specified in this Section 7(c) would adversely affect the Series F and one or more
but not all other series of Preferred Stock, then only the Series F and such series of Preferred
Stock as are adversely affected by and entitled to vote on the matter shall vote on the matter
together as a single class (in lieu of all other series of Preferred Stock).
(d) Changes for Clarification. Without the consent of the holders of the Series F, so long as
such action does not adversely affect the rights, preferences, privileges and voting powers, and
limitations and restrictions thereof, of the Series F, the Corporation may amend, alter, supplement
or repeal any terms of the Series F:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this
Certificate of Designations that may be defective or inconsistent; or
(ii) to make any provision with respect to matters or questions arising with respect to the
Series F that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision for Redemption. No vote or consent of the holders of Series F
shall be required pursuant to Section 8(b), (c) or (d) above if, at or prior to the time when any
such vote or consent would otherwise be required pursuant to such Section, all outstanding shares
of Series F shall have been redeemed, or shall have been called for redemption upon proper notice
and sufficient funds shall have been set aside for such redemption, in each case pursuant to
Section 6 above.
F-12
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting
any meeting of the holders of Series F (including, without limitation, the fixing of a record date
in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of
written consents and any other aspect or matter with regard to such a meeting or such consents
shall be governed by any rules the Board of Directors or the Committee (or another duly authorized
committee of the Board of Directors), in its discretion, may adopt from time to time, which rules
and procedures shall conform to the requirements of the Certificate of Incorporation, the Bylaws,
applicable law and any national securities exchange or other trading facility on which the Series F
is listed or traded at the time. Whether the vote or consent of the holders of a plurality,
majority or other portion of the shares of Series F and any Voting Preferred Stock has been cast or
given on any matter on which the holders of shares of Series F are entitled to vote shall be
determined by the Corporation by reference to the specified liquidation amounts of the shares voted
or covered by the consent.
Section 9. Record Holders. To the fullest extent permitted by applicable law, the Corporation
and the transfer agent for the Series F may deem and treat the record holder of any share of Series
F as the true and lawful owner thereof for all purposes, and neither the Corporation nor such
transfer agent shall be affected by any notice to the contrary.
Section 10. Notices. All notices or communications in respect of Series F shall be
sufficiently given if given in writing and delivered in person or by first class mail, postage
prepaid, or if given in such other manner as may be permitted in this Certificate of Designations,
in the Certificate of Incorporation or Bylaws or by applicable law.
Section 11. No Preemptive Rights. No share of Series F shall have any rights of preemption
whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or
granted with respect thereto, regardless of how such securities, or such warrants, rights or
options, may be designated, issued or granted.
Section 12. Other Rights. The shares of Series F shall not have any voting powers,
preferences or relative, participating, optional or other special rights, or qualifications,
limitations or restrictions thereof, other than as set forth herein or in the Certificate of
Incorporation or as provided by applicable law.
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Dates Referenced Herein and Documents Incorporated by Reference