This Managing
Director Agreement sets forth certain terms and conditions of your
employment as a Managing Director of The Goldman Sachs Group, Inc.
( “GS” ) or one or more of its subsidiaries and
affiliates (GS and its subsidiaries and affiliates, and its and
their predecessors and successors, are hereinafter referred to as
the “Firm” ). Certain capitalized terms are
defined in Section 10 below.
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1.
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Employment as a Managing
Director
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There will be no set term of
employment, and your employment will be at will, subject to the
terms and conditions of the Employment Documentation. You or the
Firm may terminate your employment at any time for any reason or
for no reason by giving not less than 90 days prior written
notice of termination (the date of such notice being the
“Notice Date”); provided, however, that the Firm may
elect to place you on paid leave for all or any part of such 90-day
period; and provided further that no advance notice need be given
by the Firm to you in connection with your termination for Cause or
Extended Absence.
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During the Employment Period:
(i) you will have such duties and responsibilities as the Firm
may from time to time determine; (ii) you will devote your
entire working time, labor, skill and energies to the business and
affairs of the Firm; (iii) you will be paid the compensation
specified in the Employment Documentation; and (iv) you will
be entitled to participate in such benefit plans and programs as
the Firm may determine in its sole discretion, under the terms and
conditions thereof.
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2.
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Compensation
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Your annual base salary will be
US$600,000. You will also participate in the PCP as described more
fully in the PCP document. All monies paid will be subject to
applicable deductions. The Firm may in its absolute discretion
deliver all or part of any bonus awarded in the form of a non-cash
award. The Firm will determine the value of any such non-cash
award, the nature of the equity interest and other applicable
conditions including vesting conditions, and its decision in this
regard will be final. At the Firm’s discretion, your base
salary and any other compensation may be quoted and paid to you in
another currency.
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3.
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Confidentiality
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In
the course of your involvement in the activities of the Firm or
otherwise, you have obtained or may obtain confidential or
proprietary information concerning the Firm’s businesses,
strategies, results, operations, financial affairs, organizational
and personnel matters (including “ Employment Related
Matters ”), policies, and procedures, and other
non-public matters concerning the Firm or concerning third parties,
including but not limited to clients of the Firm. Such information
(“ Confidential Information ”) may have been or
be provided in written or electronic form or orally. In
consideration of, and as a
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condition to, continued access to
Confidential Information, and without prejudice to or limitation on
any other confidentiality obligations imposed by agreement or by
law, you hereby undertake to use and protect Confidential
Information in accordance with any restrictions placed on its use
or disclosure. Without limiting the foregoing, except as authorized
by the Firm or as required by law, you may not disclose or allow
disclosure of (a) any Confidential Information, or of any
information derived therefrom, in whatever form, to any person
unless such person is a director, officer, employee, attorney or
agent of the Firm and, in your reasonable good faith judgment, has
a need to know the Confidential Information or information derived
therefrom in furtherance of the business of the Firm or
(b) any information (whether or not Confidential Information)
concerning the Firm (including, without limitation, with respect to
its businesses, strategies, results, operations, financial affairs,
organizational and personnel matters, policies and procedures), its
present or former partners, directors, officers, employees, agents
or clients to any reporter, author, producer or similar person or
entity or take any other action likely to result in such
information being made available to the general public in any form,
including books, articles or writings of any other kind, film,
videotape, audio tape or any other medium. You further agree that
you will not use, or take any action likely to result in the use
of, any of the Firm’s names or any abbreviation thereof in
connection with any publication to the general public in any
medium.
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Outside of your employment
relationship with the Firm, you also may be, or may previously have
been, privy to information that is confidential or proprietary to a
third party such as a prior employer. You agree that you will not
use information in any manner that would constitute a violation of
any obligation to or agreement with such third party.
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The
existence of, and any information concerning, any dispute between
you and the Firm shall constitute Confidential Information except
that you may disclose such information to the arbitrator or court
that is considering such dispute and to your legal counsel,
provided that (i) you notify each proposed recipient of the
confidentiality of the information, and (ii) with respect to
your legal counsel, he or she agrees not to disclose the
information other than as necessary to the prosecution or defense
of the dispute. Nothing herein shall limit any right or obligation
under applicable law to provide truthful information to judicial,
regulatory, administrative, or governmental authorities.
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You
will not make any oral or written negative, derogatory or
disparaging statement (whether or not such statement legally
constitutes libel or slander), about the Firm, about any
termination of your employment, or about any of the Firm’s
former partners or present or former managing directors, employees,
officers, directors, shareholders or agents.
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The
obligations set forth in the preceding four paragraphs will
survive, and remain binding and enforceable, notwithstanding any
termination of your employment and any settlement of the financial
rights and obligations arising from your employment.
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4.
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Non-Competition
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In
view of your importance to the Firm, you hereby agree that the Firm
would likely suffer significant harm from your competing with the
Firm for some period of time after your employment ends.
Accordingly, you hereby agree that you will not, without the
written consent of GS, during the Employment Period and for a
period of six months after your Notice Date:
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(1)
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form, or acquire a 5% or greater
equity ownership, voting or profit participation interest in, any
Competitive Enterprise; or
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(2)
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associate (including, but not
limited to, association as an officer, employee, partner, director,
consultant, agent or advisor) with any Competitive Enterprise and
in connection with such association engage in, or directly or
indirectly manage or supervise personnel engaged in, any
activity
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i.
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which is similar or substantially
related to any activity in which you were engaged, in whole or in
part, at the Firm,
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ii.
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for
which you had direct or indirect managerial or supervisory
responsibility at the Firm, or
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iii.
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which calls for the application of
the same or similar specialized knowledge or skills as those
utilized by you in your activities with the Firm,
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at
any time during the one-year period immediately prior to
termination of your employment, and, in any such case, irrespective
of the purpose of the activity or whether the activity is or was in
furtherance of advisory, agency, proprietary or fiduciary business
of either the Firm or the Competitive Enterprise.
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(By
way of example only, this provision precludes an
“advisory” investment banker from joining a
leveraged-buyout firm, a research analyst from becoming a
proprietary trader or joining a hedge fund, or an information
systems professional from joining a management or other consulting
firm and providing information technology consulting services or
advice to any Competitive Enterprise, in each case without the
written consent of GS.)
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5.
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Non-solicitation
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You
hereby agree that during the Employment Period and for a period of
six months after your Notice Date, you will not, in any manner,
directly or indirectly, (1) Solicit a Client to transact
business with a Competitive Enterprise or to reduce or refrain from
doing any business with the Firm, or (2) interfere with or
damage (or attempt to interfere with or damage) any relationship
between the Firm and a Client.
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You
hereby agree that during the Employment Period and for a period of
12 months after your Notice Date, you will not, in any manner,
directly or indirectly:
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(1) Solicit any
Selected Firm Personnel to resign from the Firm or to apply for or
accept employment, partnership, membership or similar status with a
Competitive Enterprise;
(2) hire or
participate in the hiring of any Selected Firm Personnel (whether
as an employee, consultant, or otherwise) by a Competitive
Enterprise;
(3) participate in
the decision to offer Selected Firm Personnel admission into
partnership, membership or similar status with a Competitive
Enterprise; or
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(4) participate in
the identification of Selected Firm Personnel for potential hiring
or admission into partnership, membership or similar status with a
Competitive Enterprise.
You acknowledge
that you will have violated this provision if, during the 12-month
period after your Notice Date, any Selected Firm Personnel are
Solicited, hired or are acc
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