EXHIBIT 10.33



 

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EXHIBIT 10.33


FORM OF

THE GOLDMAN SACHS AMENDED AND RESTATED

STOCK INCENTIVE PLAN 
2004 DISCOUNT STOCK PROGRAM AWARD



          This Award Agreement sets forth the terms and conditions of the award of RSUs under the
Discount Stock Program (“DSP 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.



          (a)      Form
of Award.  The number of DSP RSUs subject to this Award is set forth in the
Award Statement delivered to you. The Award Statement shall designate your DSP RSUs as
either “Base
RSUs” or “Discount RSUs.” 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.



          (b)      Certain
Conditions Precedent.  YOUR DSP RSU AWARD IS EXPRESSLY
CONDITIONED ON:
(I) YOUR BEING A
PARTICIPANT IN THE
GOLDMAN
SACHS
PARTNER
COMPENSATION PLAN OR
THE GOLDMAN SACHS RESTRICTED PARTNER COMPENSATION PLAN ON THE DATE OF GRANT AND YOUR
EXECUTING ANY AGREEMENT REQUIRED IN CONNECTION WITH SUCH PARTICIPATION; AND (II) YOUR
SIGNING THE RELATED SIGNATURE CARD AND RETURNING IT TO
GS  INC. BY THE DATE SPECIFIED ON THE
SIGNATURE CARD. UNLESS OTHERWISE DETERMINED BY THE COMMITTEE, YOUR FAILURE TO MEET THESE
CONDITIONS WILL RESULT IN THE CANCELATION OF YOUR
DSP AWARD.
YOUR DSP AWARD 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 13.
BY SIGNING AND RETURNING THE RELATED SIGNATURE CARD YOU WILL HAVE CONFIRMED YOUR ACCEPTANCE
OF ALL OF THE TERMS AND CONDITIONS OF THIS AWARD AGREEMENT.



          (c)      Status
under Shareholders’ Agreement.  The Shares delivered with respect to this
Award will be subject to the Goldman Sachs Shareholders’ Agreement to which you are a party,
as amended
from time to time (the “Shareholders’ Agreement”), except those Shares will not be considered
“Covered Shares”
as defined in that Agreement. Shares underlying your Base RSUs will not count toward
satisfying your transfer
restriction requirements under Section 2.1 of the Shareholders’ Agreement until the Transfer
Restrictions
described in Paragraph 3(b)(i)(B) are removed



          3.      Vesting,
Delivery and Transfer Restrictions.



          (a)      Vesting.



          (i)      Base
RSUs.  Except as provided in
Paragraph 2(b), you shall be fully Vested in all of



 









 





your Outstanding Base RSUs on the Date of Grant, and, subject to Paragraph 10, neither such Base
RSUs, nor the Shares underlying them, shall be forfeitable for any reason.



          (ii)      Discount
RSUs.  Except as provided in this Paragraph 3 and in Paragraphs 4, 7,
8, 10 and 11, on each Vesting Date you shall become Vested in the number or percentage of your
Outstanding Discount 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 Discount RSUs that are or become Vested,
all other terms and conditions of this Award Agreement shall continue to apply, and failure to
meet such terms and conditions may result in the termination of some or all of your Discount RSUs
(as a result of which no Shares underlying such Discount RSUs would be delivered).



          (b)      Delivery and Transfer
Restrictions.



          (i)      Base
RSUs.



          (A)      Delivery
Date.  The Delivery Date with respect to your Base RSUs 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
purposes of this
Agreement, a “Trading Day” is a day on which Shares trade regular way on the New York Stock
Exchange.
Except as provided in this Paragraph 3 and Paragraphs 2, 8, 10 and 11, 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, Shares underlying your Base RSUs (“Base Shares”) shall be delivered to a
brokerage or custody
account approved by the Firm.



          (B)      Transfer
Restrictions on Base Shares.  Except as provided in Paragraphs 3(c),
4(a) or
8, until the date specified on your Award Statement as the “Transferability Date:” (I) your
Base Shares shall not
be permitted to be sold, exchanged, transferred, assigned, pledged, hypothecated,
fractionalized, hedged or
otherwise disposed of (including through the use of any cash-settled instrument), whether
voluntarily or
involuntarily by you (collectively referred to as the “Transfer Restrictions”) and
any purported sale, exchange,
transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition in
violation of the
Transfer Restrictions shall be void; and (II) if and to the extent your Base Shares are
certificated, the certificates
representing your Base Shares are subject to the restrictions in this Paragraph 3(b)(i)(B) and
GS Inc. shall advise
its transfer agent to place a stop order against your Base Shares. Within 30 Business Days
after the
Transferability Date (or any other date described herein the Transfer Restrictions are
removed), GS Inc. shall
take, or shall cause to be taken, such steps as may be necessary to remove the Transfer
Restrictions.



          (C)      Escrow.  Pending receipt of any consents deemed necessary or appropriate by the
Firm,
Shares in respect of your DSP Award initially may be delivered into an escrow account meeting
such terms and
conditions as determined by the Firm. Any such escrow arrangement shall, unless otherwise
determined by the
Firm, provide that (i) the escrow agent shall have the exclusive authority to vote such Shares
while held in escrow
and (ii) dividends paid on such Shares held in escrow may be accumulated and shall be paid as
determined by GS
Inc. in its discretion. By accepting your DSP Award, you have agreed to execute such
documents and take such
steps as may be deemed necessary or appropriate by the Firm to establish and maintain any such
escrow account.



          (ii)      Discount
RSUs.  The Delivery Date with respect to your Outstanding Vested Discount
RSUs 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. Except as provided in this Paragraph 3 and in Paragraphs 2, 4(b),
5, 6, 7, 8, 10 and 11, in accordance with Section 3.23 of the Plan, reasonably promptly (but in no
case more than thirty (30) Business Days) after any date specified as the Delivery Date (or any
other date delivery of Shares is called for hereunder), Shares underlying the



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number or percentage of your then Outstanding Discount 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 to a brokerage
or custody account approved by the Firm,



          (iii)      Certain
“Covered Employees.”  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.



          (iv)      Right
to Deliver Cash or Other Property.  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 DSP 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 with respect to your DSP RSUs and/or the Transferability Restrictions
with respect to your Base Shares, 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: (i) your Base
Shares and the Shares underlying all of your then Outstanding DSP RSUs shall be delivered to the
representative of your estate; and (ii) the Transfer Restrictions then applicable to your Base
Shares shall be removed.



          4.      Termination
of Employment.



          (a)      Base
Shares.  Unless the Committee determines otherwise, if your Employment
terminates for any reason or you otherwise are no longer actively employed with the Firm
(other than by reason
of Extended Absence or solely as a result of “downsizing” as provided in Paragraph 7(b)), the
Transfer
Restrictions will be removed as soon as practicable after the date your Employment so
terminates. If your
Employment terminates by reason of Extended Absence or solely by reason of a “downsizing” as
provided in
Paragraph 7(b), the Transfer Restrictions shall continue to apply to your Base Shares until
the Transferability
Date in accordance with Paragraph 3(b)(i)(B) hereof.



          (b)      Discount
RSUs.  Unless the Committee determines otherwise, except as provided
in
Paragraphs 3(c), 7 and 8, if your Employment terminates for any reason or you otherwise are
no longer actively
employed with the Firm, your rights in respect of your Discount RSUs (but not your Base RSUs)
that were
Outstanding, but that had not yet become Vested, immediately prior to your termination of
Employment
immediately shall terminate, such Discount RSUs shall cease to be Outstanding, and no Shares
shall be delivered
in respect thereof.



          5.      Termination
of Discount RSUs and Non-Delivery of Shares.  Unless the Committee
determines otherwise, and except as provided in Paragraphs 7 and 8, your rights in respect
of all of your
Outstanding Discount RSUs (whether or not Vested), immediately shall terminate, such Discount
RSUs shall
cease to be Outstanding, and no Shares shall be delivered in respect thereof if:



          (a)      you attempt to have any dispute under the Plan or this Award Agreement resolved in
any manner that is not provided for by Paragraph 13 or Section 3.17 of the Plan;



          (b)      any event that constitutes Cause has occurred;



          (c)      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



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damage (or attempt to interfere with or damage) any relationship between the Firm and any Client,
(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 (D) 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;



          (d)      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;



          (e)      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, any offer letter, employment
agreement, the Shareholders’
Agreement, or any other shareholders’ agreement to which other similarly situated employees of
the Firm are a
party; or



          (f)      as a result of any action brought by you, it is determined that any of the terms or
conditions 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 preceding your termination of Employment with the Firm, worked in the
same division in which you worked, and (ii) any Managing Director of the Firm.



          6.      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 your Discount
RSUs, but not your Base RSUs or Base Shares.



          7.      Extended Absence
and Downsizing.



          (a)      Extended Absence.



          (i)      Notwithstanding any other provision of this Award Agreement, but subject to Paragraph
7(a)(ii), solely with respect to any Discount RSUs that were Outstanding but that had not yet
become Vested prior to your termination of Employment by reason of Extended Absence, the condition
set forth in Paragraph 4(b) shall be waived with respect to any such Discount RSUs (as a result of
which such Discount RSUs shall become Vested), but all other terms and conditions of this Award
Agreement shall continue to apply. Any termination of Employment by reason of Extended Absence
shall not affect your Base RSUs or Base Shares, and the Transfer Restrictions shall continue to
apply until the Transferability Date as provided in Paragraph 3(b)(i)(B).



          (ii)      Without limiting the application of Paragraph 4(b), your rights in respect of your
Outstanding Discount RSUs that become Vested in accordance with Paragraph 7(a)(i) immediately
shall terminate, such Outstanding Discount 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
Discount 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.



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          (b)      Downsizing.



          (i)      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 solely by
reason of a “downsizing,” the condition set forth in Paragraph 4(b) shall be waived with respect
to a portion of your Discount RSUs that were Outstanding but that had not yet become Vested prior
to your termination of Employment by reason of “downsizing,” as a result of which you shall become
Vested in a portion of such Discount RSUs, determined with respect to each remaining Vesting Date
by multiplying the number of Discount RSUs that would become Vested on each remaining Vesting Date
by a fraction, the numerator of which is the number of months from the Date of Grant to the date
your Employment terminated and the denominator of which is the number of months from the Date of
Grant to the applicable Vesting Date, but all other terms and conditions of this Award Agreement
shall continue to apply. Your termination of Employment by reason of “downsizing” shall not affect
your Base Shares, and the Transfer Restrictions shall continue to apply until the Transferability
Date as provided in Paragraph 3(b)(i)(B).



          (ii)      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.”



          8.      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 DSP RSUs, whether or not Vested, shall be delivered, and
the Transfer Restrictions with respect to your Base Shares shall be removed.



          9.      Dividend Equivalent Rights. Each of your DSP RSUs shall include a Dividend
Equivalent Right. Accordingly, with respect to each of your Outstanding DSP 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 DSP
RSU. Payment in respect of a Dividend Equivalent Right shall be made only with respect to DSP
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.



          10.      Certain Additional Terms, Conditions and Agreements.



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



          (b)      Your rights in respect of your Discount 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 DSP 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



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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 and hedging or pledging Shares and equity-based compensation or other awards
(including, without
limitation, the Firm’s “Policies With Respect to Transactions Involving GS Shares, Equity
Awards and GS
Options by Persons Affiliated with GS Inc.”), and confidential or proprietary information,
and to effect sales of
Shares delivered to you in respect of your DSP 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
Award, including
without limitation, such brokerage costs or other fees or expenses in connection with the
sale of Shares delivered
to you hereunder in respect of your DSP RSUs.



          (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 this Award Agreement or under any separate
agreement with GS
Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended
Shares.



          11.      Right of Offset. The obligation to deliver Shares under this Award Agreement or
to
remove the Transfer Restrictions 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.



          12.      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 this 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.



          13.      Arbitration; Choice of Forum. BY ACCEPTING THIS DSP 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.



          14.      Non-transferability. Except as otherwise may be provided by the Committee, and
subject to Paragraph 3 hereof, the limitations on transferability set forth in Section 3.5 of
the Plan shall apply to
this DSP Award. Any purported transfer or assignment in violation of the provisions of this
Paragraph 14 or
Section 3.5 of the Plan shall be void.



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          15.      Governing Law. YOUR DSP RSU 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.



          16.      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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