Exhibit 10.1
The Goldman Sachs Amended and
Restated Restricted Partner Compensation Plan
Section 1.
Purposes. The purpose of the Goldman
Sachs Amended and Restated Restricted Partner Compensation Plan
(the “Plan”) is to attract, retain and motivate
selected employees of The Goldman Sachs Group, Inc. (“GS
Inc.”) and its subsidiaries and affiliates (together with GS
Inc., and their and its successors, the “Firm”) who are
executive officers of GS Inc. or members of the Firm’s
Management Committee (and any successor or successors thereto) in
order to promote the Firm’s long-term growth and
profitability. It is also intended that all Bonuses (as defined in
Section 5(a)) payable under the Plan be considered
“performance-based compensation” within the meaning of
Section 162(m)(4)(C) of the Internal Revenue Code of 1986, as
amended (the “Code”), and the regulations thereunder,
and the Plan shall be interpreted accordingly.
The amendments made to the
Goldman Sachs Restricted Partner Compensation Plan, as in effect
prior to the effectiveness of the Plan pursuant to Section 7(o)
(the “2003 Plan”), pursuant to this amendment and
restatement shall affect only Bonuses relating to Contract Periods
commencing on or after November 26, 2005, and the amendments
to the 2003 Plan do not, and are not intended to, affect any Bonus
relating to any prior period.
Section 2.
Administration.
(a)
Subject to
Section 2(d), the Plan shall be administered by a committee
(the “Committee”) appointed by the Board of Directors
of GS Inc. (the “Board”), whose members shall serve at
the pleasure of the Board. The Committee at all times shall be
composed of at least two directors of GS Inc., each of whom is an
“outside director” within the meaning of Section 162(m)
of the Code and Treasury
Regulation Section 1.162-27(e)(3) and a
“non-employee director” within the meaning of Rule
16b-3 promulgated under the Securities Exchange Act of 1934, as
amended. Unless otherwise determined by the Board, the Committee
shall be the Compensation Committee of the Board.
(b)
The Committee
shall have complete control over the administration of the Plan,
and shall have the authority in its sole and absolute discretion
to: (i) exercise all of the powers granted to it under the
Plan; (ii) construe, interpret and implement the Plan and each
Contract Period Schedule (as defined in Section 4(a));
(iii) prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations governing its
own operations; (iv) make all determinations necessary or
advisable in administering the Plan (including, without limitation,
calculating the size of the Bonus payable to each Participant (as
defined in Section 4(a))); (v) correct any defect, supply any
omission and reconcile any inconsistency in the Plan and any
Contract Period Schedule; and (vi) amend the Plan and any
Contract Period Schedule to reflect changes in or interpretations
of applicable law, rules or regulations.
(c)
The determination
of the Committee on all matters relating to the Plan and any
amounts payable thereunder shall be final, binding and conclusive
on all parties.
(d)
Notwithstanding
anything to the contrary contained herein, the Committee may
allocate among its members and may delegate some or all of its
authority or administrative responsibility to such individual or
individuals who are not members of the Committee as it shall deem
necessary or appropriate; provided, however , the Committee
may not delegate any of its authority or administrative
responsibility hereunder (and no such attempted delegation shall be
effective) if such delegation would cause any Bonus payable under
the Plan not to be considered
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performance-based compensation
within the meaning of Section 162(m)(4)(C) of the Code and the
regulations thereunder, and any such attempted delegation shall be
void ab initio .
(e)
No member of the
Board or the Committee or any employee of the Firm (each such
person a “Covered Person”) shall have any liability to
any person (including, without limitation, any Participant) for any
action taken or omitted to be taken or any determination made in
good faith with respect to the Plan or any Bonus. Each Covered
Person shall be indemnified and held harmless by GS Inc. against
and from any loss, cost, liability or expense (including
attorneys’ fees) that may be imposed upon or incurred by such
Covered Person in connection with or resulting from any action,
suit or proceeding to which such Covered Person may be a party or
in which such Covered Person may be involved by reason of any
action taken or omitted to be taken under the Plan or in connection
with any Contract Period Schedule and against and from any and all
amounts paid by such Covered Person, with GS Inc.’s approval,
in settlement thereof, or paid by such Covered Person in
satisfaction of any judgment in any such action, suit or proceeding
against such Covered Person, provided that GS Inc. shall have the
right, at its own expense, to assume and defend any such action,
suit or proceeding and, once GS Inc. gives notice of its intent to
assume the defense, GS Inc. shall have sole control over such
defense with counsel of GS Inc.’s choice. The foregoing right
of indemnification shall not be available to a Covered Person to
the extent that a court of competent jurisdiction in a final
judgment or other final adjudication, in either case, not subject
to further appeal, determines that the acts or omissions of such
Covered Person giving rise to the indemnification claim resulted
from such Covered Person’s bad faith, fraud or willful
criminal act or omission. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to
which Covered Persons may be entitled under GS Inc.’s
Restated Certificate of Incorporation or Amended and Restated
Bylaws, as a matter of law, or otherwise, or any other power that
GS Inc. may have to indemnify such persons or hold them
harmless.
Section 3. Contract
Period. The Plan shall operate for
successive periods (each a “Contract Period”). The
first Contract Period shall commence on November 26, 2005 and
shall terminate on November 24, 2006. Thereafter, each
Contract Period shall be one full fiscal year and/or portions of
fiscal years to the extent consistent with Treasury
Regulation Section 1.162-27(e)(2), as determined by the
Committee.
Section 4.
Participation; Contract Period Schedule.
(a)
Prior to the
earlier of (i) the last day of GS Inc.’s first fiscal
quarter in a Contract Period or (ii) the 90th day after the
beginning of the Contract Period, or otherwise in a manner not
inconsistent with Treasury
Regulation Section 1.162-27(e)(2) (the
“Establishment Date”), the Committee shall designate
those individuals who shall participate in the Plan for each
Contract Period (the “Participants”). The names of the
Participants shall be set forth on a schedule (the “Contract
Period Schedule”). No individual who is a Participant shall,
at the same time, be a participant in The Goldman Sachs Partner
Compensation Plan.
(b)
Unless otherwise
provided in the Contract Period Schedule and except as provided
below, the Committee shall have the authority at any time
(i) during the Contract Period to remove Participants from the
Plan for that Contract Period and (ii) prior to the
Establishment Date to add Participants to the Plan for a particular
Contract Period. The Committee shall amend the Contract Period
Schedule to reflect an individual’s addition to, or removal
from, the Plan.
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Section 5. Bonus
Amounts.
With respect to each Contract
Period, each Participant shall be paid a bonus amount equal to the
Firm’s “ Pre-Tax Earnings ” (as defined in
Section 5(c)) for such Contract Period multiplied by the
“ Specified Percentage ” (as defined in
Section 5(d)) for such Contract Period. Notwithstanding
anything to the contrary in this Plan, the Committee may, in its
sole discretion, reduce the bonus amount for any Participant for a
particular Contract Period at any time prior to the payment of
bonuses to Participants pursuant to Section 6 (a
Participant’s bonus amount for each Contract Period, as so
reduced, the “Bonus”).
(i) If a
Participant’s employment with the Firm terminates for any
reason before the end of a Contract Period, unless otherwise
provided in the Contract Period Schedule, the Committee shall have
the discretion to determine whether (i) such Participant shall
be entitled to any Bonus at all, (ii) such Participant’s
Bonus shall be reduced on a pro-rata basis to reflect the
portion of such Contract Period the Participant was employed by the
Firm or (iii) to make such other arrangements as the Committee
deems appropriate in connection with the termination of such
Participant’s employment.
(ii) For purposes of this
Section 5, “ Pre-Tax Earnings ” shall mean
the Firm’s pre-tax earnings as reported in its audited
consolidated financial statements for the relevant fiscal year,
adjusted to eliminate, with respect to such fiscal year:
(1) gains or losses that
are the direct result of a major casualty or natural
disaster;
(2) gains or losses that
are separately disclosed and result from any newly-enacted law,
regulation, judicial order or accounting pronouncement;
and
(3) amounts related to
(i) exit or disposal activities, (ii) the impairment or
disposal of long-lived assets or the impairment of goodwill and
other intangible assets, (iii) net provisions for litigation
and other regulatory proceedings, (iv) equity-based or other
employee retention awards granted in connection with any
acquisition, and (v) items that are unusual in nature or
infrequent in occurrence and are separately disclosed;
provided,
however , that for purposes of
calculating
