FORM OF 2003 YEAR-END RSU AWARD AGREEMENT



 



EXHIBIT 10.10



THE GOLDMAN SACHS AMENDED AND RESTATED

STOCK INCENTIVE PLAN

2003 YEAR-END RSU AWARD



     This Award Agreement sets forth the terms and conditions of the 2003
Year-End award (this “Award”) of RSUs (“2003 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 2003 Year-End RSUs subject to this Award is set
forth in the Award Statement delivered to you. An RSU constitutes 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 SIGNING
THE RELATED SIGNATURE CARD AND RETURNING IT TO GS INC. BY THE DATE SPECIFIED ON
THE SIGNATURE CARD, 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
SIGNING AND RETURNING 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 and 10, on each Vesting Date you shall become Vested in the number or
percentage of 2003 Year-End RSUs specified next to such Vesting Date on the
Award Statement (subject to rounding to avoid becoming Vested in fractional
2003 Year-End RSUs). While continued active Employment is not required in
order to receive delivery of the Shares underlying your Outstanding 2003
Year-End RSUs that are or become Vested, all other conditions of this Award
Agreement shall continue to apply to such Vested 2003 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 2003 Year-End RSUs
would be delivered).


     (b)  Delivery.


     (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
and 10, 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 2003 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. 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 2003 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 provision of this Award Agreement,
if you die prior to the Delivery Date, the Shares underlying your then
Outstanding 2003 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.


     4.     Termination of 2003 Year-End RSUs and Non-Delivery of Shares.


     (a)  Unless the Committee determines otherwise, and except as provided in
Paragraphs 3(c), 6 and 7, if your Employment terminates for any reason or you
otherwise are no longer actively employed with the Firm, your rights in respect
of your 2003 Year-End RSUs that were Outstanding but that had not yet become
Vested immediately prior to your termination of Employment immediately shall
terminate, such 2003 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 2003
Year-End RSUs (whether or not Vested) shall immediately terminate, such 2003
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) you in any manner, directly or indirectly, (A) Solicit any Client to
transact business with a Competitive Enterprise or to reduce or refrain from
doing any business with the Firm, (B) interfere with or damage (or attempt to
interfere with or damage) any relationship between the Firm and any Client or
(C) 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



          (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.



     5.     Repayment. The provisions of Section 2.6.3 of the Plan (which requires
Award recipients to repay to the Firm amounts delivered to them if the
Committee determines
that all terms and conditions of this Award Agreement in respect of such
delivery were not satisfied) shall apply to this Award.


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     6.     Extended Absence, Retirement and Downsizing.


     (a)  Notwithstanding any other provision of this Award Agreement, but
subject to Paragraph 6(b), in the event of the termination of your Employment
by reason of Extended Absence or Retirement (determined as described in Section
1.2.19 of the Plan), the condition set forth in Paragraph 4(a) shall be waived
with respect to any 2003 Year-End RSUs that were Outstanding but that had not
yet become Vested immediately prior to such termination of Employment (as a
result of which such 2003 Year-End RSUs shall become Vested), but all other
conditions of this Award Agreement shall continue to apply.


     (b)  Without limiting the application of Paragraph 4(b), your rights in
respect of your Outstanding 2003 Year-End RSUs that become Vested in accordance
with Paragraph 6(a) immediately shall terminate, such Outstanding 2003 Year-End
RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect
thereof if, prior to the original Vesting Date with respect to such 2003
Year-End RSUs, you (i) form, or acquire a 5% or greater equity ownership,
voting or profit participation interest in, any Competitive Enterprise, or (ii)
associate in any capacity (including, but not limited to, association as an
officer, employee, partner, director, consultant, agent or advisor) with any
Competitive Enterprise. Notwithstanding the foregoing, unless otherwise
determined by the Committee in its discretion, this Paragraph 6(b) will not
apply if your termination of Employment by reason of Extended Absence or
Retirement is characterized by the Firm as “involuntary” or by “mutual
agreement” other than for Cause and if you execute such a general waiver and
release of claims and an agreement to pay any associated tax liability, both as
may be prescribed by the Firm or its designee. No termination of Employment
initiated by you, including any termination claimed to be a “constructive
termination” or the like or a termination for good reason, will constitute an
“involuntary” termination of Employment or a termination of Employment by
“mutual agreement.”


     (c)  Notwithstanding any other provision of this Award Agreement and
subject to your executing such general waiver and release of claims and an
agreement to pay any associated tax liability, both as may be prescribed by the
Firm or its designee, if your Employment is terminated without Cause solely by
reason of a “downsizing,” the condition set forth in Paragraph 4(a) shall be
waived with respect to your 2003 Year-End RSUs that were Outstanding but that
had not yet become Vested immediately prior to such termination of Employment
(as a result of which such 2003 Year-End RSUs shall become Vested), but all
other conditions of this Award Agreement shall continue to apply. Whether or
not your Employment is terminated solely by reason of a “downsizing” shall be
determined by the Firm in its sole discretion. No termination of Employment
initiated by you, including any termination claimed to be a “constructive
termination” or the like or a termination for good reason, will be solely by
reason of a “downsizing.”


     7.     Change in Control. Notwithstanding anything to the contrary in this
Award Agreement, in the event a Change in Control shall occur and within 18
months thereafter the Firm terminates your Employment without Cause or you
terminate your Employment for Good Reason, all Shares underlying your then
Outstanding 2003 Year-End RSUs, whether or not Vested, shall be delivered.


     8.     Dividend Equivalent Rights. Each 2003 Year-End RSU shall include a
Dividend Equivalent Right. Accordingly, with respect to each of your
Outstanding 2003 Year-End RSUs, at or after the time of distribution of any
regular cash dividend paid by GS Inc. in respect of a Share the record date for
which occurs on or after the Date of Grant, you shall be entitled to receive an
amount (less applicable withholding) equal to such regular dividend
payment as would have been made in respect of the Share underlying such
Outstanding 2003 Year-End RSU. Payment in respect of a Dividend Equivalent
Right shall be made only with respect to 2003 Year-End RSUs that are
Outstanding on the payment date. Each Dividend Equivalent Right shall be
subject to the provisions of Section 2.8.2 of the Plan.


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     9.     Withholding, Consents, Transactions involving Common Stock and Legends.


     (a)  The delivery of Shares is conditioned on your satisfaction of any
applicable withholding taxes in accordance with Section 3.2 of the Plan.


     (b)  If you are or become a Managing Director, your rights in respect of
the 2003 Year-End RSUs are conditioned on your becoming a party to any
shareholders’ agreement to which other similarly situated employees of the Firm
are a party.


     (c)  Your rights in respect of your 2003 Year-End RSUs are conditioned on
the receipt to the full satisfaction of the Committee of any required consents
(as described in Section 3.3 of the Plan) that the Committee may determine to
be necessary or advisable.


     (d)  You understand and agree, in accordance with Section 3.3 of the Plan,
by accepting this Award, you have expressly consented to all of the items
listed in Section 3.3.3(d) of the Plan, which are incorporated herein by
reference.


     (e)  You understand and agree, in accordance with Section 3.22 of the Plan,
by accepting this Award you have agreed to be subject to the Firm’s policies in
effect from time to time concerning trading in Shares, hedging or pledging
Shares and equity-based compensation or other awards, and confidential or
proprietary information, and to effect sales of Shares delivered to you in
respect of your 2003 Year-End RSUs in accordance with such rules and procedures
as may be adopted from time to time with respect to sales of such Shares (which
may include, without limitation, restrictions relating to the timing of sale
requests, the manner in which sales are executed, pricing method, consolidation
or aggregation of orders and volume limits determined by the Firm). In
addition, you understand and agree that you shall be responsible for all
brokerage costs and other fees or expenses associated with your 2003 Year-End
RSU Award, including without limitation, such brokerage costs or other fees or
expenses in connection with the sale of Shares delivered to you hereunder.


     (f)  GS Inc. may affix to Certificates representing Shares issued pursuant
to this Award Agreement any legend that the Committee determines to be
necessary or advisable (including to reflect any restrictions to which you may
be subject under a separate agreement with GS Inc.). GS Inc. may advise the
transfer agent to place a stop order against any legended Shares.


     10.     Right of Offset. The obligation to deliver Shares under this Award
Agreement is subject to Section 3.4 of the Plan, which provides for the Firm’s
right to offset against such obligation any outstanding amounts you owe to the
Firm and any amounts the Committee deems appropriate pursuant to any tax
equalization policy or agreement.


     11.     Amendment. The Committee reserves the right at any time to amend the
terms and conditions set forth in this Award Agreement, and the Board may amend
the Plan in any respect; provided that, notwithstanding the foregoing and
Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall
materially adversely affect your rights and obligations under this Award
Agreement without your consent; and provided further that the Committee
expressly reserves its rights to amend the Award Agreement and the Plan as
described in Sections 1.3.2(h)(1), (2) and (4) of the Plan. Any amendment of
this Award Agreement shall be in writing signed by an authorized member of the
Committee or a person or persons designated by the Committee.


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     12.     Arbitration; Choice of Forum. BY ACCEPTING THIS AWARD, YOU UNDERSTAND
AND AGREE THAT THE ARBITRATION AND CHOICE OF FORUM PROVISIONS SET FORTH IN
SECTION 3.17 OF THE PLAN, WHICH ARE EXPRESSLY INCORPORATED HEREIN BY REFERENCE
AND WHICH, AMONG OTHER THINGS, PROVIDE THAT ANY DISPUTE, CONTROVERSY OR CLAIM
BETWEEN THE FIRM AND YOU ARISING OUT OF OR RELATING TO OR CONCERNING THE PLAN
OR THIS AWARD AGREEMENT SHALL BE FINALLY SETTLED BY ARBITRATION IN NEW YORK
CITY, PURSUANT TO THE TERMS MORE FULLY SET FORTH IN SECTION 3.17 OF THE PLAN,
SHALL APPLY.


     13.     Non-transferability. Except as otherwise may be provided by the
Committee, the limitations on transferability set forth in Section 3.5 of the
Plan shall apply to this Award. Any purported transfer or assignment in
violation of the provisions of this Paragraph 13 or Section 3.5 of the Plan
shall be void.


     14.     Governing Law. THIS AWARD SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.


     15.     Headings. The headings in this Award Agreement are for the purpose of
convenience only and are not intended to define or limit the construction of
the provisions hereof.


     IN WITNESS WHEREOF, GS Inc. has caused this Award Agreement to be duly
executed and delivered as of the Date of Grant.



	 	 	 
	 	 	
THE GOLDMAN SACHS GROUP, INC.
	 	 	 
	 	 	
By: 
	 	 	
Name: Henry M. Paulson, Jr.
	 	 	
Title: Chairman and Chief Executive Officer




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