EXHIBIT 4.1
THE GOLDMAN SACHS GROUP, INC.
NON-QUALIFIED DEFERRED COMPENSATION PLAN
FOR
U.S. PARTICIPATING MANAGING DIRECTORS
ARTICLE 1
INTRODUCTION
1.1 Purpose of Plan
The
Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan
for U.S. Participating Managing Directors is intended to promote
the interests of GS Inc. and its shareholders by encouraging
certain Eligible Employees to remain in the employ of the Firm by
providing them with a means by which they may request to defer
receipt of a portion of their Eligible Compensation.
ARTICLE 2
DEFINITIONS
Wherever used
herein, the following terms have the meanings set forth below,
unless a different meaning clearly is required by the
context:
2.1 Account means, for each Participant, a notional account
maintained on the books and records of GS Inc. (by GS Inc. or such
third party record keeper or record keepers as GS Inc. may from
time to time appoint) that is established for his or her benefit
and as to which amounts are credited under
Section 5.1.
2.2 Administrative Committee means the person or persons
designated by the Compensation Policy Committee or the Board of
Directors with the authority to perform day-to-day administrative
functions for the Plan. If no such person is so serving at any
time, the Compensation Policy Committee shall be the Administrative
Committee.
2.3 Board of Directors means the Board of Directors of GS
Inc.
2.4 Compensation Policy Committee means the GS Inc.
Compensation Policy Committee, as it may be constituted from time
to time.
2.5 Code means the Internal Revenue Code of 1986. Reference
to any section or subsection of the Code includes reference to any
comparable or succeeding provisions of any legislation that amends,
supplements or replaces such section or subsection.
2.6 Deferral means the portion of a Participant’s
Eligible Compensation that is deferred in accordance with
Section 4.1 hereof.
2.7 Deferral Date means, with respect to each Plan Year, the
earliest date GS Inc. determines that Eligible Compensation subject
to a Deferral Request would have been paid to the Eligible Employee
in the absence of the Plan, or such other date or dates as may be
selected by the Administrative Committee in its sole discretion
prior to the date Deferral Requests are required to be returned to
the Administrative Committee for a Plan Year.
2.8 Deferral Request means any request by a Participant to
make a Deferral hereunder by submitting a Deferral Request Form in
accordance with Section 4.1 hereof.
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2.9 Deferral Request Form means the form (which may be in
electronic form) specified by the Administrative Committee from
time to time pursuant to which an Eligible Employee can make a
Deferral Request.
2.10 Distribution Date means, with respect to each Deferral
made by a Participant, the date on which an amount shall become
payable to a Participant in accordance with Article 7
hereof.
2.11 Effective Date means November 27, 2004, the date
as of which the Plan first became effective.
2.12 Eligible Compensation means, for each Eligible
Employee, with respect to each Plan Year the amount the Firm
determines in its sole discretion otherwise would have been payable
to the Eligible Employee as a gross end-of-year bonus (excluding
any amounts payable to the Eligible Employee that are directly
attributable to the performance of services prior to the beginning
of such Plan Year), and before giving effect to any Deferral, but
after giving effect to: (i) any “voluntary contribution
election” under The Goldman Sachs Employees’ Profit
Sharing Retirement Income Plan (as that term is defined therein) or
to any similar compensation reduction election made in connection
with a plan subject to Section 401(k) of the Code; (ii) the
cost of contribution by the Firm for any public or private employee
benefit plan; (iii) any contribution to the Money Purchase Plan;
(iv) any amount the Firm decides to contribute as part of
compensation to the Goldman Sachs UK Retirement Plan or GSI
International Pension Plan or any other plan maintained outside the
United States primarily for non-U.S. citizens or residents that the
Administrative Committee determines is similar thereto;
(v) the value of any award recommendation in respect of any
plan or arrangement the Firm determines is similar to The Goldman
Sachs UK Conditional Share Reward Plan, including, without
limitation, any such plan or arrangement involving the
establishment and funding of an “employee benefit
trust” in the United Kingdom; and (vi) any request to
participate in the Firm’s PMD Discount Stock Program. Unless
otherwise permitted by the Administrative Committee no year-end
award granted under The Goldman Sachs Amended and Restated Stock
Incentive Plan, as in effect from time to time, shall constitute
Eligible Compensation. Notwithstanding the foregoing, the
Administrative Committee, in its discretion, with respect to any
Eligible Employee or Eligible Employees (on a uniform or
non-uniform basis) shall have the authority to (a) designate
any jurisdiction or jurisdictions from which amounts earned by any
Eligible Employee will be excluded from Eligible Compensation and
(b) include or exclude, as the case may be, any amounts that
otherwise would be excluded or included, as the case may be, in any
Eligible Employee’s Eligible Compensation.
2.13 Eligible Employee means, unless otherwise provided by
the Administrative Committee, in a Plan Year, an individual
(i) who is a participant in The Goldman Sachs Partner
Compensation Plan (“PCP”) or The Goldman Sachs
Restricted Partner Compensation Plan (“RPCP”),
(ii) who earned Minimum Eligible Compensation for either or
both of the immediately preceding Plan Year or the second preceding
Plan Year, (iii) who is designated by the Administrative
Committee as eligible to participate in the Plan or is a member of
a class of employees who is designated by the Administrative
Committee as eligible to participate in the Plan for the Plan Year
and (iv) who is not eligible to make a deferral under The
Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan
for U.K. Participating Managing Directors. The Administrative
Committee may, in its sole discretion, add or exclude any
individual or any member of a class of individuals from being
considered an Eligible Employee. An individual shall first be
considered an Eligible Employee on the date he or she first
receives written notification from the Administrative Committee
that he or she is eligible to participate in the Plan. Unless
otherwise provided by the Administrative Committee (including, by
reason of legal, tax or other regulatory restrictions or
impediments to the individual or to the Firm arising out of a
country other than the United States or United Kingdom) an
individual that is an Eligible Employee for any Plan Year shall,
for any subsequent Plan Year in which he or she is a participant in
the PCP or RPCP, be eligible to participate in the Plan (or in The
Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan
for U.K. Participating Managing Directors, if in such year he or
she is no longer a resident for tax purposes in the United States
but is a U.K. Employee, as defined in The Goldman Sachs Group, Inc.
Non-Qualified Deferred Compensation Plans for U.K. Participating
Managing Directors).
2.14 ERISA means the Employee Retirement Income Security Act
of 1974, as amended from time to time. Reference to any section or
subsection of ERISA includes reference to any comparable or
succeeding provisions of any legislation that amends, supplements
or replaces such section or subsection.
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2.15 Firm means GS Inc. and its subsidiaries and
affiliates.
2.16 GS Inc. means The Goldman Sachs Group, Inc., and any
successor thereto.
2.17 Investment Committee means a committee of two or more
individuals selected by the Administrative Committee, which shall
have the authority to select the Notional Investments that are made
available from time to time under the Plan.
2.18 Maximum Aggregate Deferral Amount means, with respect
to each Plan Year, $100 million or such other amount as may be
determined by GS Inc. from time to time, which shall be the maximum
total of all Deferrals for all Participants permitted under the
Plan for such Plan Year. GS Inc. may, in its discretion,
(i) aggregate the Plan with such other deferred compensation
plan or plans as it may determine for purposes of applying the
Maximum Aggregate Deferral Amount and (ii) allocate the
Maximum Aggregate Deferral Amount among the Plan and any deferred
compensation plans that are so aggregated with the Plan in any
manner deemed appropriate by it.
2.19 Maximum Deferral Amount means, unless otherwise
determined by GS Inc., with respect to each Participant for each
Plan Year, the lesser of: (i) 50% of the Participant’s
Eligible Compensation and (ii) $1 million.
2.20 Minimum Deferral Amount means, with respect to each
Participant for each Plan Year, $100,000 or such other amount as
may be determined by the Administrative Committee prior to the date
Deferral Request Forms are required to be returned to the
Administrative Committee for a Plan Year, which shall be the
minimum amount that a Participant may request as a Deferral for a
Plan Year.
2.21 Minimum Eligible Compensation means total compensation
of at least $200,000 or such other amount as may be determined by
the Administrative Committee prior to the beginning of a Plan
Year.
2.22 Money Purchase Plan means The Goldman Sachs Money
Purchase Pension Plan, as amended from time to time, or any
successor thereto.
2.23 Notional Investment means a hypothetical investment
made available under the Plan by the Investment Committee from time
to time in which a Participant’s Account may be deemed to be
invested in whole or in part in accordance with Sections 5.2
and 5.3 hereof in order to measure the value of the
Account.
2.24 Participant means any Eligible Employee who
participates in the Plan in accordance with
Article 3.
2.25 Plan means The Goldman Sachs Group, Inc. Non-Qualified
Deferred Compensation Plan for U.S. Participating Managing
Directors.
2.26 Plan Year means the 12-month period that coincides with
GS Inc.’s fiscal year.
2.27 Total and Permanent Disability means, with respect to
any Participant, if such Participant is unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than 12 months, or is, by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits
for not less than 3 months under any accident or health plan
covering employees of the Firm.
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ARTICLE 3
PARTICIPATION
3.1 Commencement of Participation
Any
Eligible Employee who requests to defer part of his or her Eligible
Compensation in accordance with Article 4 shall, if and to the
extent the Firm, in its discretion, agrees to follow the request,
become a Participant in the Plan as of the first Deferral Date as
of which a Deferral is credited to the Eligible Employee’s
Account in accordance with Section 4.2.
3.2 Continued Participation
A
Participant in the Plan shall continue to be a Participant so long
as any amount remains credited to his or her Account.
ARTICLE 4
DEFERRALS
4.1 Deferral Request Form
Subject to the
provisions of Article 4 hereof, for each Plan Year for which
the Plan is in effect, an Eligible Employee may, by properly
completing a Deferral Request Form and filing it with the
Administrative Committee not later than the date specified by the
Administrative Committee (which shall not be later than the last
day of the Plan Year immediately preceding the Plan Year for which
the Deferral Request is made, unless the Administrative Committee
determines that a later date is permitted under Section 409A
of the Code), request that a Deferral be made on his or her behalf,
on such terms as the Administrative Committee may permit in its
sole discretion. The Firm may, in its sole discretion, determine
whether or not to follow any Deferral Request with respect to any
Eligible Employee.
4.2 Mechanics of Deferral
Subject to the
provisions of this Article 4, if and to the extent the Firm
determines to follow a Deferral Request, an Eligible
Employee’s Eligible Compensation shall be reduced in
accordance with the Participant’s Deferral Request, and the
amount of the resulting Deferral shall be credited to the
Participant’s Account as of the Deferral Date.
4.3 Minimum Deferral Amount
Notwithstanding
anything herein or in any Deferral Request Form to the contrary, no
Deferral shall be for an amount and no Deferral Request shall be
valid to the extent that it specifies an amount less than the
Minimum Deferral Amount for the applicable Plan Year.
4.4 Maximum Deferral Amount
Notwithstanding
anything herein or in any Deferral Request Form to the contrary, no
Deferral shall be for an amount in excess of the Maximum Deferral
Amount. If any amount specified on a Deferral Request Form as a
Deferral would exceed the Maximum Deferral Amount, such Deferral
Request Form shall be deemed to have specified the Maximum Deferral
Amount.
4.5 Maximum Aggregate Deferral Amount
Notwithstanding
anything herein or in any Deferral Request Form to the contrary, if
and to the extent that the aggregate amounts specified on all
Deferral Request Forms in a Plan Year that the Firm determines to
follow exceed
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the Maximum Aggregate Deferral
Amount, the amounts specified on each Participant’s Deferral
Request Form shall be reduced, and each Participants’
Deferrals shall be reduced, under a formula or method determined by
the Administrative Committee in its sole discretion, including,
without limitation, a pro rata reduction to the ratio of the
Maximum Aggregate Deferral Amount to the aggregate of the amounts
specified by all Participants’ on their Deferral Request
Forms so that the aggregate Deferrals of all Participants do not
exceed the Maximum Aggregate Deferral Amount; provided that no
Participant’s Deferral shall be reduced to an amount below
the Minimum Deferral Amount.
4.6 Deferral Request Irrevocable
Except to the
extent determined by the Administrative Committee (but in no event
later than the date on which all Deferral Request Forms must be
returned to the Administrative Committee for a Plan Year), all
Deferral Requests shall be irrevocable when made, and no
Participant may change or revoke his or her Deferral Request with
respect to Eligible Compensation payable for a Plan
Year.
ARTICLE 5
ACCOUNTS
5.1 Accounts
The
Administrative Committee shall maintain an Account for each
Participant that reflects each Participant’s Deferrals and
any adjustments determined in accordance with Section 5.2,
forfeitures and any payments made under Article 7 with respect
to the Account. The Administrative Committee shall provide each
Participant with a periodic statement of his or her Account
adjusted in accordance with Section 5.2.
5.2 Adjustment of Accounts
The
amount of each Participant’s Deferral for a Plan Year shall
be credited to the Participant’s Account as of the applicable
Deferral Date. The Participant’s Account shall be adjusted
from time to time to reflect: (i) Deferrals for subsequent Plan
Years, if any; (ii) gains (or losses) determined as if the
Account were invested directly in the Notional Investment or
Notional Investments selected by the Participant (without taking
into account any tax consequences that may have arisen were the
Account so directly invested); (iii) the amount described in
Section 7.5; (iv) any payments under Article 7 in
respect of a Deferral; and (v) any administrative charge
determined by the Compensation Policy Committee or Administrative
Committee in its sole discretion to be appropriate to cover part or
all of the cost to the Firm of making the Plan available to
Participants or otherwise maintaining the Plan.
5.3 Notional Investments
(a) The
Notional Investment or Notional Investments that shall be available
under the Plan shall be determined from time to time by the
Investment Committee in its sole discretion. The Investment
Committee may, in its sole discretion, provide limitations or
procedures on the availability of any Notional Investment or
Notional Investments with respect to any Participant or class of
Participants. The Investment Committee may modify, amend, eliminate
or replace any or all of the Notional Investments that may be
available under the Plan to Plan Participants or any of them, in
any manner in its sole discretion at any time from time to time
with or without notice to the Participants and effective
retroactively or prospectively, subject to Section 9.3
hereof.
(b) In
selecting any Notional Investment or Notional Investments to be
made available under the Plan or prescribing any rules related
thereto, the Investment Committee and the Administrative Committee
shall be acting solely on behalf of the Firm and not as a fiduciary
or adviser with respect to any Deferral, any Participant or any
other person employed by the Firm or in respect of any Account.
Each Participant, by requesting to participate in the Plan, agrees
that none of the Investment Committee, the Administrative
Committee, the Compensation Policy Committee, GS Inc., the Firm or
any other person shall have any liability whatsoever to any
Participant or any other person as a result of, arising out of or
related to the selection or elimination or modification of Notional
Investments,
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any monitoring of any such
Notional Investment or any Participant’s selection or failure
to select any Notional Investment.
(c) The
Administrative Committee or the Investment Committee may adopt such
rules and administrative practices as they, in their sole
discretion, shall deem necessary or appropriate in connection with
any Participant’s ability to select Notional Investments
hereunder, including restrictions on the timing or frequency of
such selections; all such Notional Investment selections shall be
made in such form as may be required by the Administrative
Committee from time to time.
ARTICLE 6
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