EXHIBIT 10.34



 




EXHIBIT 10.34


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”) under The Goldman Sachs Amended and Restated Stock Incentive
Plan (the “Plan”).



          1.      The Plan. Your DSP 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 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 12. 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 such Shares will not be considered
“Covered Shares”
as defined in that Agreement.



          3.      Vesting and Delivery.



          (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 9, neither such Base
RSUs, nor the Shares delivered thereunder, shall be forfeitable for any reason.



 









 





          (ii)      Discount RSUs. 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 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 Outstanding 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.



          (i)      The Delivery Date with respect to all of your DSP 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 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 2, 4, 5, 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 DSP 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. 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 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, the Shares underlying all of your then Outstanding DSP 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 Discount 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 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.



          (b)      Unless the Committee determines otherwise, and except as provided in Paragraphs 6
and 7, your rights in respect of all of your Outstanding Discount RSUs (whether or not
Vested) (but not your
Base RSUs), immediately shall terminate, such Discount RSUs shall cease to be Outstanding and
no Shares shall
be delivered in respect thereof if:



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          (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, (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;



          (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, 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



          (vi)      as a result of any action brought by you, it is determined that any of the
terms or conditions for Delivery 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.



          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 your Discount
RSUs but, subject to Paragraph 2(b), not your Base RSUs.



          6.      Extended Absence 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, the
condition set forth
in Paragraph 4(a) shall be waived with respect to any Discount RSUs that were Outstanding but
that had not yet
become Vested immediately prior to such termination of Employment (as a result of which such
Discount 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 Discount RSUs that become Vested in accordance with Paragraph 6(a) immediately
shall terminate,
such Outstanding Discount RSUs shall cease to be Outstanding, and no Shares shall be delivered
in respect



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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. 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 solely by
reason of a “downsizing,” the condition set forth in Paragraph 4(a) 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 Vesting Date by
multiplying the number of Discount RSUs that would become Vested on the 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. 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 DSP RSUs, whether or not Vested, shall be delivered.



          8.      Dividend Equivalent Rights. Each DSP RSU 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.



          9.      Certain
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
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.



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          (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 this
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 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.



          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 DSP 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.



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          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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