{"id":41638,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/goldman-sachs-restated-certificate-of-incorporation.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"goldman-sachs-restated-certificate-of-incorporation","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/goldman-sachs-restated-certificate-of-incorporation.html","title":{"rendered":"Goldman Sachs Restated Certificate of Incorporation"},"content":{"rendered":"
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RESTATED
\nCERTIFICATE OF INCORPORATION
\nOF
\nTHE GOLDMAN SACHS GROUP, INC.<\/b>\n\n\n\n<\/p>
THE GOLDMAN SACHS GROUP, INC., a corporation organized and existing under the Delaware General\nCorporation Law (the \"Corporation\"), does hereby certify:\n\n\n<\/p>
1.  The name of the Corporation is The Goldman Sachs Group, Inc. The date of filing of its original\ncertificate of incorporation with the Secretary of State of the State of Delaware was July  21,\n1998.\n\n\n<\/p>
2.  This Restated Certificate of Incorporation restates and integrates and does not further amend\nthe provisions of the certificate of incorporation of the Corporation as heretofore amended or\nsupplemented. There is no discrepancy between the provisions of this Restated Certificate of\nIncorporation and the provisions of the certificate of incorporation of the Corporation as\nheretofore amended or supplemented. This Restated Certificate of Incorporation has been duly\nadopted in accordance with the provisions of Section  245 of the General Corporation Law of the\nState of Delaware. The text of the certificate of incorporation is hereby restated to read herein\nas set forth in full:\n\n\n\n<\/p>
FIRST. The name of the Corporation is The Goldman Sachs Group, Inc.\n\n\n\n<\/p>
SECOND. The address of the Corporation\u0092s registered office in the State of Delaware is\nCorporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle.\nThe name of its registered agent at such address is The Corporation Trust Company.\n\n\n\n<\/p>
THIRD. The purpose of the Corporation is to engage in any lawful act or activity for which\ncorporations may be organized under the Delaware General Corporation Law. Without limiting the\ngenerality of the foregoing, the Corporation shall have all of the powers conferred on\ncorporations by the Delaware General Corporation Law and other law, including the power and\nauthority to make an initial charitable contribution (as defined in Section 170(c) of the\nInternal Revenue Code of 1986, as currently in effect or as the same may hereafter be amended)\nof up to an aggregate of $200,000,000 to one or more entities (the \"Contribution\"), and to make\nother charitable contributions from time to time thereafter, in such amounts, on such terms and\nconditions and for such purposes as may be lawful.\n\n\n\n<\/p>
FOURTH. The total number of shares of all classes of stock which the Corporation shall have\nauthority to issue is 4,350,000,000, of which 4,000,000,000 shares of the par value of $0.01\nper share shall be a separate class designated as Common Stock, 200,000,000 shares of the par\nvalue of $0.01 per share shall be a separate class designated as Nonvoting Common Stock and\n150,000,000 shares of the par value of $0.01 per share shall be a separate class designated as\nPreferred Stock.\n\n\n\n<\/p>
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COMMON STOCK AND NONVOTING COMMON STOCK<\/b>\n\n\n\n\n<\/p>
Except as set forth in this Article  FOURTH, the Common Stock and the Nonvoting Common Stock\n(together, the \"Common Shares\") shall have the same rights and privileges and shall rank\nequally, share ratably and be identical in all respects as to all matters.\n\n\n\n\n<\/p>
(i)  Voting. Except as may be provided in this Restated Certificate of Incorporation or\nrequired by law, the Common Stock shall have voting rights in the election of directors and\non all other matters presented to stockholders, with each holder of Common Stock being\nentitled to one vote for each share of Common Stock held of record by such holder on such\nmatters. The Nonvoting Common Stock shall have no voting rights other than such rights as\nmay be required by the first sentence of Section  242(b)(2) of the Delaware General\nCorporation Law or any similar provision hereafter enacted; provided that an amendment of\nthis Restated Certificate of Incorporation to increase or decrease the number of authorized\nshares of Nonvoting Common Stock (but not below the number of shares thereof then\noutstanding) may be adopted by resolution adopted by the board of directors of the\nCorporation and approved by the affirmative vote of the holders of a majority of the voting\npower of all outstanding shares of Common Stock of the Corporation and all other\noutstanding shares of stock of the Corporation entitled to vote thereon irrespective of the\nprovisions of Section  242(b)(2) of the Delaware General Corporation Law or any similar\nprovision hereafter enacted, with such outstanding shares of Common Stock and other stock\nconsidered for this purpose as a single class, and no vote of the holders of any shares of\nNonvoting Common Stock, voting separately as a class, shall be required therefor.\n\n\n\n<\/p>
(ii)  Dividends. Subject to the rights of the holders of any series of Preferred Stock,\nholders of Common Stock and holders of Nonvoting Common Stock shall be entitled to receive\nsuch dividends and distributions (whether payable in cash or otherwise) as may be declared\non the Common Shares by the board of directors of the Corporation from time to time out of\nassets or funds of the Corporation legally available therefor; provided that the board of\ndirectors of the Corporation shall declare no dividend, and no dividend shall be paid, with\nrespect to any outstanding share of Common Stock or Nonvoting Common Stock, whether in cash\nor otherwise (including any dividend in shares of Common Stock on or with respect to shares\nof Common Stock or any dividend in shares of Nonvoting Common Stock on or with respect to\nshares of Nonvoting Common Stock (collectively, \"Stock Dividends\")), unless,\nsimultaneously, the same dividend is declared or paid with respect to each share of Common\nStock and Nonvoting Common Stock. If a Stock Dividend is declared or paid with respect to\none class, then a Stock Dividend shall likewise be declared or paid with respect to the\nother class and shall consist of shares of such other class in a number that bears the same\nrelationship to the total number of shares of such other class, issued and outstanding\nimmediately prior to the payment of such dividend, as the number of shares comprising the\nStock Dividend with respect to the first referenced class\n\n\n<\/p>
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bears to the total number of shares of such first referenced class, issued and outstanding\nimmediately prior to the payment of such dividend. Stock Dividends with respect to Common\nStock may be paid only with shares of Common Stock. Stock Dividends with respect to\nNonvoting Common Stock may be paid only with shares of Nonvoting Common Stock.\nNotwithstanding the foregoing, in the case of any dividend in the form of capital stock of\na subsidiary of the Corporation, the capital stock of the subsidiary distributed to holders\nof Common Stock shall be identical to the capital stock of the subsidiary distributed to\nholders of Nonvoting Common Stock, except that the capital stock distributed to holders of\nCommon Stock may have full or any other voting rights and the capital stock distributed to\nholders of Nonvoting Common Stock shall be non-voting to the same extent as the Nonvoting\nCommon Stock is non-voting.\n\n\n\n<\/p>
(iii)  Subdivisions, Combinations and Mergers. If the Corporation shall in any manner split,\nsubdivide or combine the outstanding shares of Common Stock or the outstanding shares of\nNonvoting Common Stock, the outstanding shares of the other such class of the Common Shares\nshall likewise be split, subdivided or combined in the same manner proportionately and on\nthe same basis per share. In the event of any merger, statutory share exchange,\nconsolidation or similar form of corporate transaction involving the Corporation (whether\nor not the Corporation is the surviving entity), the holders of Common Stock and the\nholders of Nonvoting Common Stock shall be entitled to receive the same per share\nconsideration, if any, except that any securities received by holders of Common Stock in\nconsideration of such stock may have full or any other voting rights and any securities\nreceived by holders of Nonvoting Common Stock in consideration of such stock shall be\nnon-voting to the same extent as the Nonvoting Common Stock is non-voting.\n\n\n\n<\/p>
(iv)  Rights on Liquidation. Subject to the rights of the holders of any series of Preferred\nStock, in the event of any liquidation, dissolution or winding-up of the Corporation\n(whether voluntary or involuntary), the assets of the Corporation available for\ndistribution to stockholders shall be distributed in equal amounts per share to the holders\nof Common Stock and the holders of Nonvoting Common Stock, as if such classes constituted a\nsingle class. For purposes of this paragraph, a merger, statutory share exchange,\nconsolidation or similar corporate transaction involving the Corporation (whether or not\nthe Corporation is the surviving entity), or the sale, transfer or lease by the Corporation\nof all or substantially all its assets, shall not constitute or be deemed a liquidation,\ndissolution or winding-up of the Corporation.\n\n\n<\/p>
PREFERRED STOCK<\/b>\n\n\n\n\n<\/p>
Shares of Preferred Stock may be issued in one or more series from time to time as determined\nby the board of directors of the Corporation, and the board of directors of the Corporation is\nauthorized to fix by resolution or resolutions the designations and\n\n\n<\/p>
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the powers, preferences and rights, and the qualifications, limitations and restrictions\nthereof, of the shares of each series of Preferred Stock, including the following:\n\n\n\n<\/p>
(i)  the distinctive serial designation of such series which shall distinguish it from other\nseries;\n\n\n\n<\/p>
(ii)  the number of shares included in such series;\n\n\n\n<\/p>
(iii)  whether dividends shall be payable to the holders of the shares of such series and,\nif so, the basis on which such holders shall be entitled to receive dividends (which may\ninclude, without limitation, a right to receive such dividends or distributions as may be\ndeclared on the shares of such series by the board of directors of the Corporation, a right\nto receive such dividends or distributions, or any portion or multiple thereof, as may be\ndeclared on the Common Stock or any other class of stock or, in addition to or in lieu of\nany other right to receive dividends, a right to receive dividends at a particular rate or\nat a rate determined by a particular method, in which case such rate or method of\ndetermining such rate may be set forth), the form of such dividend, any conditions on which\nsuch dividends shall be payable and the date or dates, if any, on which such dividends\nshall be payable;\n\n\n\n<\/p>
(iv)  whether dividends on the shares of such series shall be cumulative and, if so, the\ndate or dates or method of determining the date or dates from which dividends on the shares\nof such series shall be cumulative;\n\n\n\n<\/p>
(v)  the amount or amounts, if any, which shall be payable out of the assets of the\nCorporation to the holders of the shares of such series upon the voluntary or involuntary\nliquidation, dissolution or winding-up of the Corporation, and the relative rights of\npriority, if any, of payment of the shares of such series;\n\n\n\n\n<\/p>
(vi)  the price or prices (in cash, securities or other property or a combination thereof)\nat which, the period or periods within which and the terms and conditions upon which the\nshares of such series may be redeemed, in whole or in part, at the option of the\nCorporation or at the option of the holder or holders thereof or upon the happening of a\nspecified event or events;\n\n\n\n<\/p>
(vii)  the obligation, if any, of the Corporation to purchase or redeem shares of such\nseries pursuant to a sinking fund or otherwise and the price or prices (in cash, securities\nor other property or a combination thereof) at which, the period or periods within which\nand the terms and conditions upon which the shares of such series shall be redeemed or\npurchased, in whole or in part, pursuant to such obligation;\n\n\n\n<\/p>
(viii)  whether or not the shares of such series shall be convertible or exchangeable, at\nany time or times at the option of the holder or holders thereof or at the option of the\nCorporation or upon the happening of a specified event or\n\n\n<\/p>
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events, into shares of any other class or classes or any other series of the same or any\nother class or classes of stock of the Corporation or any other securities or property of\nthe Corporation or any other entity, and the price or prices (in cash, securities or other\nproperty or a combination thereof) or rate or rates of conversion or exchange and any\nadjustments applicable thereto; and\n\n\n\n\n<\/p>
(ix)  whether or not the holders of the shares of such series shall have voting rights, in\naddition to the voting rights provided by law, and if so the terms of such voting rights,\nwhich may provide, among other things and subject to the other provisions of this Restated\nCertificate of Incorporation, that each share of such series shall carry one vote or more\nor less than one vote per share, that the holders of such series shall be entitled to vote\non certain matters as a separate class (which for such purpose may be comprised solely of\nsuch series or of such series and one or more other series or classes of stock of the\nCorporation) and that all the shares of such series entitled to vote on a particular matter\nshall be deemed to be voted on such matter in the manner that a specified portion of the\nvoting power of the shares of such series or separate class are voted on such matter.\n\n\n\n<\/p>
For all purposes, this Restated Certificate of Incorporation shall include each certificate of\ndesignations (if any) setting forth the terms of a series of Preferred Stock.\n\n\n\n<\/p>
Subject to the rights, if any, of the holders of any series of Preferred Stock set forth in a\ncertificate of designations, an amendment of this Restated Certificate of Incorporation to\nincrease or decrease the number of authorized shares of any series of Preferred Stock (but not\nbelow the number of shares thereof then outstanding) may be adopted by resolution adopted by\nthe board of directors of the Corporation and approved by the affirmative vote of the holders\nof a majority of the voting power of all outstanding shares of Common Stock of the Corporation\nand all other outstanding shares of stock of the Corporation entitled to vote thereon\nirrespective of the provisions of Section  242(b)(2) of the Delaware General Corporation Law or\nany similar provision hereafter enacted, with such outstanding shares of Common Stock and other\nstock considered for this purpose as a single class, and no vote of the holders of any series\nof Preferred Stock, voting as a separate class, shall be required therefor.\n\n\n\n<\/p>
Except as otherwise required by law or provided in the certificate of designations for the\nrelevant series, holders of Common Shares, as such, shall not be entitled to vote on any\namendment of this Restated Certificate of Incorporation that alters or changes the powers,\npreferences, rights or other terms of one or more outstanding series of Preferred Stock if the\nholders of such affected series are entitled, either separately or together with the holders of\none or more other series of Preferred Stock, to vote thereon as a separate class pursuant to\nthis Restated Certificate of Incorporation or pursuant to the Delaware General Corporation Law\nas then in effect.\n\n\n<\/p>
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Pursuant to the authority conferred by this Article  FOURTH upon the board of directors of the\nCorporation and authority delegated by the board of directors to the Securities Issuance\nCommittee of the board of directors of the Corporation (the \"Securities Issuance Committee\"),\nthe Securities Issuance Committee created a series of shares of Preferred Stock designated as\nFloating Rate Non-Cumulative Preferred Stock, Series  A, by filing a certificate of designations\nof the Corporation with the Secretary of State of the State of Delaware on April  22, 2005, and\nthe voting powers, designations, preferences and relative, participating, optional or other\nspecial rights, and the qualifications, limitations or restrictions thereof, of the\nCorporation\u0092s Floating Rate Non-Cumulative Preferred Stock, Series  A, are set forth in Appendix\nA hereto and are incorporated herein by reference.\n\n\n\n\n<\/p>
Pursuant to the authority conferred by this Article  FOURTH upon the board of directors of the\nCorporation and authority delegated by the board of directors to the Securities Issuance\nCommittee, the Securities Issuance Committee created a series of shares of Preferred Stock\ndesignated as 6.20% Non-Cumulative Preferred Stock, Series  B, by filing a certificate of\ndesignations of the Corporation with the Secretary of State of the State of Delaware on October\n28, 2005, and the voting powers, designations, preferences and relative, participating,\noptional or other special rights, and the qualifications, limitations or restrictions thereof,\nof the Corporation\u0092s 6.20% Non-Cumulative Preferred Stock, Series  B, are set forth in Appendix\nB hereto and are incorporated herein by reference.\n\n\n\n<\/p>
Pursuant to the authority conferred by this Article  FOURTH upon the board of directors of the\nCorporation and authority delegated by the board of directors to the Securities Issuance\nCommittee, the Securities Issuance Committee created a series of shares of Preferred Stock\ndesignated as Floating Rate Non-Cumulative Preferred Stock, Series  C, by filing a certificate\nof designations of the Corporation with the Secretary of State of the State of Delaware on\nOctober  28, 2005, and the voting powers, designations, preferences and relative, participating,\noptional or other special rights, and the qualifications, limitations or restrictions thereof,\nof the Corporation\u0092s Floating Rate Non-Cumulative Preferred Stock, Series  C, are set forth in\nAppendix  C hereto and are incorporated herein by reference.\n\n\n<\/p>
OPTIONS, WARRANTS AND OTHER RIGHTS<\/b>\n\n\n\n<\/p>
The board of directors of the Corporation is authorized to create and issue options, warrants\nand other rights from time to time entitling the holders thereof to purchase securities or\nother property of the Corporation or any other entity, including any class or series of stock\nof the Corporation or any other entity and whether or not in connection with the issuance or\nsale of any securities or other property of the Corporation, for such consideration (if any),\nat such times and upon such other terms and conditions as may be determined or authorized by\nthe board of directors of the Corporation and set forth in one or more agreements or\ninstruments. Among other things and without limitation, such terms and conditions may provide\nfor the following:\n\n\n<\/p>
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(i)  adjusting the number or exercise price of such options, warrants or other rights or the\namount or nature of the securities or other property receivable upon exercise thereof in\nthe event of a subdivision or combination of any securities, or a recapitalization, of the\nCorporation, the acquisition by any person of beneficial ownership of securities\nrepresenting more than a designated percentage of the voting power of any outstanding\nseries, class or classes of securities, a change in ownership of the Corporation\u0092s\nsecurities or a merger, statutory share exchange, consolidation, reorganization, sale of\nassets or other occurrence relating to the Corporation or any of its securities, and\nrestricting the ability of the Corporation to enter into an agreement with respect to any\nsuch transaction absent an assumption by another party or parties thereto of the\nobligations of the Corporation under such options, warrants or other rights;\n\n\n\n<\/p>
(ii)  restricting, precluding or limiting the exercise, transfer or receipt of such options,\nwarrants or other rights by any person that becomes the beneficial owner of a designated\npercentage of the voting power of any outstanding series, class or classes of securities of\nthe Corporation or any direct or indirect transferee of such a person, or invalidating or\nvoiding such options, warrants or other rights held by any such person or transferee; and\n\n\n\n\n<\/p>
(iii)  permitting the board of directors (or certain directors specified or qualified by the\nterms of the governing instruments of such options, warrants or other rights) to redeem,\nterminate or exchange such options, warrants or other rights.\n\n\n\n<\/p>
This paragraph shall not be construed in any way to limit the power of the board of directors\nof the Corporation to create and issue options, warrants or other rights.\n\n\n\n<\/p>
FIFTH. The name and mailing address of the incorporator is Gregory K. Palm, 85 Broad Street,\nNew York, New York 10004.\n\n\n\n<\/p>
SIXTH. All corporate powers shall be exercised by the board of directors of the Corporation,\nexcept as otherwise specifically required by law or as otherwise provided in this Restated\nCertificate of Incorporation. Any meeting of stockholders may be postponed by action of the\nboard of directors at any time in advance of such meeting. The board of directors of the\nCorporation shall have the power to adopt such rules and regulations for the conduct of the\nmeetings and management of the affairs of the Corporation as they may deem proper and the power\nto adjourn any meeting of stockholders without a vote of the stockholders, which powers may be\ndelegated by the board of directors to the chairman of such meeting either in such rules and\nregulations or pursuant to the by-laws of the Corporation.\n\n\n\n<\/p>
Special meetings of stockholders of the Corporation may be called at any time by, but only by,\nthe board of directors of the Corporation, to be held at such date, time and place either\nwithin or without the State of Delaware as may be stated in the notice of the meeting.\n\n\n<\/p>
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The board of directors of the Corporation is authorized to adopt, amend or repeal by-laws of\nthe Corporation. No adoption, amendment or repeal of a by-law by action of stockholders shall\nbe effective unless approved by the affirmative vote of the holders of not less than 80% of the\nvoting power of all outstanding shares of Common Stock of the Corporation and all other\noutstanding shares of stock of the Corporation entitled to vote on such matter, with such\noutstanding shares of Common Stock and other stock considered for this purpose as a single\nclass. Any vote of stockholders required by this Article  SIXTH shall be in addition to any\nother vote of stockholders that may be required by law, this Restated Certificate of\nIncorporation, the by-laws of the Corporation, any agreement with a national securities\nexchange or otherwise.\n\n\n\n\n<\/p>
SEVENTH. Elections of directors need not be by written ballot except and to the extent provided\nin the by-laws of the Corporation.\n\n\n\n<\/p>
EIGHTH. The number of directors of the Corporation shall be fixed only by resolution of the\nboard of directors of the Corporation from time to time. Each director who is serving as a\ndirector on the date of this Restated Certificate of Incorporation shall hold office until the\nnext annual meeting of stockholders after such date and until his or her successor has been\nduly elected and qualified, notwithstanding that such director may have been elected for a term\nthat extended beyond the date of such next annual meeting of stockholders. At each annual\nmeeting of stockholders after the date of this Restated Certificate of Incorporation, directors\nelected at such annual meeting shall hold office until the next annual meeting of stockholders\nand until their successors have been duly elected and qualified.\n\n\n\n<\/p>
Any director may be removed, with or without cause, with the affirmative vote of the holders of\nnot less than 80% of the voting power of all outstanding shares of stock of the Corporation\nentitled to vote generally in the election of directors, considered for this purpose as a\nsingle class.\n\n\n\n<\/p>
Vacancies and newly created directorships resulting from any increase in the authorized number\nof directors or from any other cause (other than vacancies and newly created directorships\nwhich the holders of any class or classes of stock or series thereof are expressly entitled by\nthis Restated Certificate of Incorporation to fill) shall be filled by, and only by, a majority\nof the directors then in office, although less than a quorum, or by the sole remaining\ndirector. Any director appointed to fill a vacancy or a newly created directorship shall hold\noffice until the next annual meeting of stockholders, and until his or her successor is elected\nand qualified or until his or her earlier resignation or removal.\n\n\n\n<\/p>
Notwithstanding the foregoing, in the event that the holders of any class or series of\nPreferred Stock of the Corporation shall be entitled, voting separately as a class, to elect\nany directors of the Corporation, then the number of directors that may be elected by such\nholders voting separately as a class shall be in addition to the number fixed pursuant to a\nresolution of the board of directors of the Corporation. Except as\n\n\n<\/p>
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otherwise provided in the terms of such class or series, (i)  the terms of the directors elected\nby such holders voting separately as a class shall expire at the annual meeting of stockholders\nnext succeeding their election and (ii)  any director or directors elected by such holders\nvoting separately as a class may be removed, with or without cause, by the holders of a\nmajority of the voting power of all outstanding shares of stock of the Corporation entitled to\nvote separately as a class in an election of such directors.\n\n\n\n\n<\/p>
NINTH. In taking any action, including action that may involve or relate to a change or\npotential change in the control of the Corporation, a director of the Corporation may consider,\namong other things, both the long-term and short-term interests of the Corporation and its\nstockholders and the effects that the Corporation\u0092s actions may have in the short term or long\nterm upon any one or more of the following matters:\n\n\n\n<\/p>
(i)  the prospects for potential growth, development, productivity and profitability of the\nCorporation;\n\n\n\n<\/p>
(ii)  the Corporation\u0092s current employees;\n\n\n\n<\/p>
(iii)  the retired former partners of The Goldman Sachs Group, L.P. (\"GS Group\") and the\nCorporation\u0092s employees and other beneficiaries receiving or entitled to receive\nretirement, welfare or similar benefits from or pursuant to any plan sponsored, or\nagreement entered into, by the Corporation;\n\n\n\n<\/p>
(iv)  the Corporation\u0092s customers and creditors;\n\n\n\n<\/p>
(v)  the ability of the Corporation to provide, as a going concern, goods, services,\nemployment opportunities and employment benefits and otherwise to contribute to the\ncommunities in which it does business; and\n\n\n\n\n<\/p>
(vi)  such other additional factors as a director may consider appropriate in such\ncircumstances.\n\n\n\n<\/p>
Nothing in this Article  NINTH shall create any duty owed by any director of the Corporation to\nany person or entity to consider, or afford any particular weight to, any of the foregoing\nmatters or to limit his or her consideration to the foregoing matters. No such employee,\nretired former partner of GS Group, former employee, beneficiary, customer, creditor or\ncommunity or member thereof shall have any rights against any director of the Corporation or\nthe Corporation under this Article  NINTH.\n\n\n\n<\/p>
TENTH. From and after the consummation of the initial public offering of the shares of Common\nStock of the Corporation, no action of stockholders of the Corporation required or permitted to\nbe taken at any annual or special meeting of stockholders of the Corporation may be taken\nwithout a meeting of stockholders, without prior notice and without a vote, and the power of\nstockholders of the Corporation to consent in writing to the taking of any action without a\nmeeting is specifically denied. Notwithstanding this Article  TENTH, the holders of any series\nof Preferred Stock of\n\n\n<\/p>
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the Corporation shall be entitled to take action by written consent to such extent, if any, as\nmay be provided in the terms of such series.\n\n\n\n<\/p>
ELEVENTH. No provision of Articles SIXTH, NINTH, TENTH or TWELFTH or of this Article  ELEVENTH\nor of the second paragraph of Article  EIGHTH shall be amended, modified or repealed, and no\nprovision inconsistent with any such provision shall become part of this Restated Certificate\nof Incorporation, unless such matter is approved by the affirmative vote of the holders of not\nless than 80% of the voting power of all outstanding shares of Common Stock of the Corporation\nand all other outstanding shares of stock of the Corporation entitled to vote on such matter,\nwith such outstanding shares of Common Stock and other stock considered for this purpose as a\nsingle class. Any vote of stockholders required by this Article  ELEVENTH shall be in addition\nto any other vote of the stockholders that may be required by law, this Restated Certificate of\nIncorporation, the by-laws of the Corporation, any agreement with a national securities\nexchange or otherwise.\n\n\n\n<\/p>
TWELFTH. A director of the Corporation shall not be liable to the Corporation or its\nstockholders for monetary damages for breach of fiduciary duty as a director of the\nCorporation, except to the extent that such exemption from liability or limitation thereof is\nnot permitted under the Delaware General Corporation Law as currently in effect or as the same\nmay hereafter be amended.\n\n\n\n<\/p>
Pursuant to the Plan of Incorporation of GS Group, dated as of March  8, 1999, as currently in\neffect or as the same may hereafter be amended (the \"Plan\"), the Corporation has the right, but\nnot the obligation, to make special arrangements with any person who was a partner of GS Group\nparticipating in the Plan to ameliorate, in whole or in part, certain significantly\ndisproportionate tax or other burdens. The board of directors of the Corporation is authorized\nto cause the Corporation to make such arrangements (which may include special payments) as the\nboard of directors of the Corporation may, in its sole discretion, deem appropriate to\neffectuate the intent of the relevant provision of the Plan and the Corporation and each\nstockholder of the Corporation shall, to the fullest extent permitted by law, be deemed to have\napproved and ratified any such determination and to have waived any claim or objection on\nbehalf of the Corporation or any such stockholder arising out of the making of such\narrangements.\n\n\n\n<\/p>
Pursuant to the Plan, the Corporation has the right, but not the obligation, to register with\nthe Securities and Exchange Commission the resale of certain securities of the Corporation by\ndirectors, employees and former directors and employees of the Corporation and its subsidiaries\nand affiliates and former partners and employees of GS Group and its subsidiaries and\naffiliates and to undertake various actions and to enter into agreements and arrangements in\nconnection therewith (collectively, the \"Registration Arrangements\"). The board of directors of\nthe Corporation is authorized to cause the Corporation to undertake such Registration\nArrangements as the board of directors of the Corporation may, in its sole discretion, deem\nappropriate and the Corporation and each stockholder of the Corporation shall, to the fullest\nextent\n\n\n<\/p>
10\n<\/p><\/div>\n\n\n
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permitted by law, be deemed to have approved and ratified any such determination and to have\nwaived any claim or objection on behalf of the Corporation or any such stockholder arising out\nof the undertaking of such Registration Arrangements.\n\n\n\n<\/p>
The Corporation and each stockholder of the Corporation shall, to the fullest extent permitted\nby law, be deemed to have approved and ratified any decision by the board of directors of the\nCorporation to make the Contribution referred to in Article  THIRD, including the amount thereof\n(up to the limit specified in Article  THIRD) and to have waived any claim or objection on\nbehalf of the Corporation or any such stockholder arising out of any such decision to make, or\nthe making of, the Contribution.\n\n\n\n<\/p>
The authorizations, approvals and ratifications contained in the second, third and fourth\nparagraphs of this Article  TWELFTH shall not be construed to indicate that any other\narrangements or contributions not specifically referred to in such paragraphs are, by reason of\nsuch omission, not within the power and authority of the board of directors of the Corporation\nor that the determination of the board of directors of the Corporation with respect thereto\nshould be judged by any legal standard other than that which would have applied but for the\ninclusion of the second, third and fourth paragraphs of this Article  TWELFTH.\n\n\n\n<\/p>
No amendment, modification or repeal of this Article  TWELFTH shall adversely affect any right\nor protection of a director of the Corporation that exists at the time of such amendment,\nmodification or repeal.\n\n\n<\/p>
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of Incorporation to be\nsigned and attested by its duly authorized officer on this 12th<\/sup> day of December, 2005.\n\n\n\n<\/p>\n\n    \n    \n    \n    \n    \n    
  <\/td>\n      <\/td>\n      <\/td>\n      <\/td>\n      <\/td>\n<\/tr>\n
  <\/td>\n      <\/td>\n\n      <\/td>\n<\/tr>
  <\/td>\n    By:    <\/td>\n    \/s\/ Gregory K. Palm\n  <\/td>\n      <\/td>\n<\/tr>
  <\/td>\n      <\/td>\n\n    Name:    <\/td>\n    Gregory K. Palm  <\/td>\n      <\/td>\n<\/tr>
  <\/td>\n      <\/td>\n    Title:    <\/td>\n    General Counsel  <\/td>\n\n      <\/td>\n<\/tr>\n
  <\/td>\n<\/tr>\n<\/table>\n\n\n
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