THE GOLDMAN SACHS AMENDED AND
RESTATED
STOCK INCENTIVE PLAN
YEAR-END RSU AWARD
This Award
Agreement sets forth the terms and conditions of the
Year-End award (this “Award”) of RSUs (“
Year-End RSUs”) granted to you under The Goldman Sachs
Amended and Restated Stock Incentive Plan (the
“Plan”).
1. The
Plan . This Award is made pursuant to the Plan, the terms of
which are incorporated in this Award Agreement. Capitalized terms
used in this Award Agreement that are not defined in this Award
Agreement have the meanings as used or defined in the Plan.
References in this Award Agreement to any specific Plan provision
shall not be construed as limiting the applicability of any other
Plan provision.
2.
Award . The number of
Year-End RSUs subject to this Award is set forth in the Award
Statement delivered to you. An RSU is an unfunded and unsecured
promise to deliver (or cause to be delivered) to you, subject to
the terms and conditions of this Award Agreement, a share of Common
Stock (a “Share”) on the Delivery Date or as otherwise
provided herein. Until such delivery, you have only the rights of a
general unsecured creditor, and no rights as a shareholder of GS
Inc. This Award is
conditioned on your executing the related signature card and
returning it to the address designated on the signature card and/or
by the method designated on the signature card by the date
specified, and is subject to all terms, conditions and provisions
of the Plan and this Award Agreement, including, without
limitation, the arbitration and choice of forum provisions set
forth in Paragraph 12 . By executing the related signature card
(which, among other things, opens the custody account referred to
in paragraph 3( b )
if you have not done so already), you will have confirmed your
acceptance of all of the terms and conditions of this Award
Agreement.
3.
Vesting and Delivery .
(a)
Vesting . Except as provided in this Paragraph 3 and in
Paragraphs 4, 6, 7, 9, 10 and 15, on each Vesting Date you shall
become Vested in the number or percentage of
Year-End RSUs specified next to such Vesting Date on the Award
Statement (which may be rounded to avoid fractional Shares). While
continued active Employment is not required in order to receive
delivery of the Shares underlying your Outstanding
Year-End RSUs that are or become Vested, all other terms and
conditions of this Award Agreement shall continue to apply to such
Vested
Year-End RSUs, and failure to meet such terms and conditions may
result in the termination of this Award (as a result of which no
Shares underlying such Vested
Year-End RSUs would be delivered).
(i) The
Delivery Date with respect to this Award shall be the date
specified as such on your Award Statement, if that date is during a
Window Period or, if that date is not during a Window Period, the
first Trading Day of the first Window Period beginning after such
date. For this purpose, a “Trading Day” is a day on
which Shares trade regular way on the New York Stock
Exchange.
(ii)
Except as provided in this Paragraph 3 and in Paragraphs 4, 6,
7, 9, 10 and 15, in accordance with Section 3.23 of the Plan,
reasonably promptly (but in no case more than thirty (30) Business
Days) after the date specified as the Delivery Date (or any other
date delivery of Shares is called for hereunder), Shares underlying
the number or percentage of your then Outstanding
Year-End RSUs with respect to which the Delivery Date (or other
date) has occurred (which number of Shares may be rounded
to
avoid
fractional Shares) shall be delivered by book entry credit to your
Custody Account or to a brokerage account approved by the Firm.
Notwithstanding the foregoing, if you are or become considered by
GS Inc. to be one of its “covered employees” within the
meaning of Section 162(m) of the Code, then you shall be
subject to Section 3.21.3 of the Plan, as a result of which
delivery of your Shares may be delayed.
(iii) In
accordance with Section 1.3.2(i) of the Plan, in the
discretion of the Committee, in lieu of all or any portion of the
Shares otherwise deliverable in respect of all or any portion of
your
Year-End RSUs, the Firm may deliver cash, other securities, other
Awards or other property, and all references in this Award
Agreement to deliveries of Shares shall include such deliveries of
cash, other securities, other Awards or other property.
(c)
Death . Notwithstanding any other Paragraph of this Award
Agreement, if you die prior to the Delivery Date, the Shares
underlying your then Outstanding
Year-End RSUs shall be delivered to the representative of your
estate as soon as practicable after the date of death and after
such documentation as may be requested by the Committee is provided
to the Committee. The Committee may adopt procedures pursuant to
which you may be permitted to specifically bequeath some or all of
your Outstanding
Year-End RSUs under your will to an organization described in
Sections 501(c)(3) and 2055(a) of the Code (or such other
similar charitable organization as may be approved by the
Committee).
4.
Termination of
Year-End RSUs and Non-Delivery of Shares .
(a) Unless
the Committee determines otherwise, and except as provided in
Paragraphs 3(c), 6, 7, and 9, if your Employment terminates for any
reason or you otherwise are no longer actively employed with the
Firm, your rights in respect of your
Year-End RSUs that were Outstanding but that had not yet become
Vested immediately prior to your termination of Employment
immediately shall terminate, such
Year-End RSUs shall cease to be Outstanding and no Shares shall be
delivered in respect thereof.
(b) Unless
the Committee determines otherwise, and except as provided in
Paragraphs 6 and 7, your rights in respect of all of your
Outstanding
Year-End RSUs (whether or not Vested) shall immediately terminate,
such
Year-End RSUs shall cease to be Outstanding and no Shares shall be
delivered in respect thereof if:
(i) you
attempt to have any dispute under the Plan or this Award Agreement
resolved in any manner that is not provided for by
Paragraph 12 or Section 3.17 of the Plan;
(ii) any
event that constitutes Cause has occurred;
(iii)
(A) you, in any manner, directly or indirectly,
(1) Solicit any Client to transact business with a Competitive
Enterprise or to reduce or refrain from doing any business with the
Firm, (2) interfere with or damage (or attempt to interfere
with or damage) any relationship between the Firm and any Client,
(3) Solicit any person who is an employee of the Firm to
resign from the Firm or to apply for or accept employment with any
Competitive Enterprise or (4) on behalf of yourself or any
person or Competitive Enterprise hire, or participate in the hiring
of, any Selected Firm Personnel or identify, or participate in the
identification of, Selected Firm Personnel for potential hiring,
whether as an employee or consultant or otherwise, or
(B) Selected Firm Personnel are Solicited, hired or accepted
into partnership, membership or similar status (1) by a Competitive
Enterprise that you form, that bears your name, in which you are a
partner, member or have similar status, or in which you possess or
control greater than a de minimis equity ownership, voting or
profit participation or (2) by any Competitive Enterprise
where you have, or are intended to have, direct or indirect
managerial or supervisory responsibility for such Selected Firm
Personnel;
-2-
(iv) you
fail to certify to GS Inc., in accordance with procedures
established by the Committee, that you have complied, or the
Committee determines that you in fact have failed to comply, with
all the terms and conditions of the Plan and this Award Agreement.
By accepting the delivery of Shares under this Award Agreement, you
shall be deemed to have represented and certified at such time that
you have complied with all the terms and conditions of the Plan and
this Award Agreement;
(v) the
Committee determines that you failed to meet, in any respect, any
obligation you may have under any agreement between you and the
Firm, or any agreement entered into in connection with your
Employment with the Firm, including, without limitation, the
Firm’s notice period requirement applicable to you, any offer
letter, employment agreement or any shareholders’ agreement
to which other similarly situated employees of the Firm are a
party; or
(vi) as
a result of any action brought by you, it is determined that any of
the terms or conditions for delivery of Shares in respect of this
Award Agreement are invalid.
For purposes of
the foregoing, the term “Selected Firm Personnel”
means: (i) any Firm employee or consultant (A) with whom
you personally worked while employed by the Firm, or (B) who
at any time during the year immediately p
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