EX-10.37



 




EXHIBIT
10.37


The Goldman Sachs Group, Inc.

Non-Qualified Deferred Compensation Plan

for

U.S. Extended Managing Directors

and Other Select U.S. Employees




As Amended and Restated Effective January 1, 2008 for Amounts not

Distributed Prior to Such Date




ARTICLE 1

INTRODUCTION




1.1 Purpose of Plan




The Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan for U.S. Extended Managing
Directors and Other Select U.S. Employees is intended to promote the interests of GS Inc. and its
shareholders by encouraging certain Eligible Employees to remain in the employ of the Firm by
providing them with a means by which they may request to defer receipt of a portion of their
Eligible Compensation.



ARTICLE 2

DEFINITIONS




Wherever used herein, the following terms have the meanings set forth below, unless a different
meaning clearly is required by the context:



2.1 Account means, for each Participant, a notional account maintained on the books and records of
GS Inc. (by GS Inc. or such third party record keeper or record keepers as GS Inc. may from time to
time appoint) that is established for his or her benefit and as to which amounts are credited under
Section 5.1.



2.2 Administrative Committee means the person or persons designated by the Compensation Policy
Committee or the Board of Directors with the authority to perform day-to-day administrative
functions for the Plan. If no such person is so serving at any time, the Compensation Policy
Committee shall be the Administrative Committee.



2.3 Board of Directors means the Board of Directors of GS Inc.



2.4 Compensation Policy Committee means the GS Inc. Compensation Policy Committee, as it may be
constituted from time to time.



 









 





2.5 Code means the Internal Revenue Code of 1986. Reference to any section or other provision of
the Code includes reference to any comparable or succeeding provisions of any legislation that
amends, supplements or replaces such provision and to any applicable regulations and other
interpretative guidance relating to such provisions.



2.6 Deferral means the portion of a Participant’s Eligible Compensation that is deferred in
accordance with Section 4.1 hereof.



2.7 Deferral Date means, with respect to each Plan Year, the earliest date GS Inc. determines that
Eligible Compensation subject to a Deferral Request would have been paid to the Eligible Employee
in the absence of the Plan, or such other date or dates as may be selected by the Administrative
Committee in its sole discretion prior to the Deferral Deadline.



2.8 Deferral Deadline means, with respect to any Plan Year, the latest date on which a completed
Deferral Request Form may be submitted to the Administrative Committee in order for a Deferral
Request to be effective for that Plan Year pursuant to Section 4.1 (or such later date as may be
permitted under Section 409A of the Code by which time the Deferral Request must be irrevocable).



2.9 Deferral Request means any request by a Participant to make a Deferral hereunder by submitting
a Deferral Request Form in accordance with Section 4.1 hereof.



2.10 Deferral Request Form means the form (which may be in electronic form) specified by the
Administrative Committee from time to time pursuant to which an Eligible Employee can make a
Deferral Request.



2.11 Distribution Date means, with respect to each Deferral made by a Participant, the date on
which an amount shall become payable to a Participant in accordance with Article 7 hereof.



2.12 Effective Date means November 27, 2004, the date as of which the Plan first became effective.



2.13 Eligible Compensation means, for each Eligible Employee, with respect to each Plan Year the
amount the Firm determines in its sole discretion otherwise would have been payable to the Eligible
Employee as a gross end-of-year cash bonus (excluding any amounts payable to the Eligible Employee
that are directly attributable to the performance of services prior to the beginning of such Plan
Year) or, with respect to any Eligible Employee paid on a net commission basis, Net Commissions,
and before giving effect to any Deferral, less applicable deductions. Unless otherwise permitted
by the Administrative Committee no later than the Deferral Deadline, no year-end award (including,
if the Eligible Employee is paid on a commission basis, the portion of such individual’s “Target
Total Compensation” allocated to any such award) granted under The Goldman Sachs Amended and
Restated Stock Incentive Plan, as in effect from time to time, shall constitute Eligible
Compensation.



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2.14 Eligible Employee means, for any Plan Year, unless otherwise provided by the Administrative
Committee, an individual (i) who does not participate in The Goldman Sachs Partner Compensation
Plan or The Goldman Sachs Restricted Partner Compensation Plan and is not eligible to make a
deferral under The Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan for U.K.
Extended Managing Directors and Other Select U.K. Employees, (ii) who earned Minimum Eligible
Compensation for either or both of the immediately preceding Plan Year or the second preceding Plan
Year, (iii) who is designated by the Administrative Committee as eligible to participate in the
Plan or is a member of a class of employees who is designated by the Administrative Committee as
eligible to participate in the Plan for the Plan Year. The Administrative Committee may, in its
sole discretion, (i) not later than the Deferral Deadline, add any individual or any member of a
class of individuals as an Eligible Employee or exclude any individual or any member of a class of
individuals from being considered an Eligible Employee, or (ii) after the Deferral Deadline, add
any individual or any member of a class of individuals as an Eligible Employee if the individual
was not eligible to participate in the Plan (as aggregated with certain other plans for this
purpose in accordance with Treasury Regulations) in a previous Plan Year and if the individual
makes an initial deferral election within 30 days after first becoming eligible to participate, and
only with respect to compensation paid for services to be performed after the election in
accordance with Treasury Regulations Section 1.409A-2(a)(7). An individual shall first be
considered an Eligible Employee on the date he or she first receives written notification from the
Administrative Committee that he or she is eligible to participate in the Plan. Unless otherwise
provided by the Administrative Committee (including, by reason of legal, tax or other regulatory
restrictions or impediments to the individual or to the Firm arising out of a country other than
the United States or United Kingdom), an individual that is an Eligible Employee for any Plan Year
shall, for so long as he remains an active employee of the Firm, be an Eligible Employee for any
future Plan Year (or an Eligible Employee under The Goldman Sachs Group, Inc. Non-Qualified
Deferred Compensation Plan for U.K. Extended Managers and Other Select U.K. Employees, with respect
to any Plan Year in which such individual meets the definition of “Eligible Employee” under that
plan).



2.15 ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
Reference to any section or subsection of ERISA includes reference to any comparable or succeeding
provisions of any legislation that amends, supplements or replaces such section or subsection.



2.16 Firm means GS Inc. and its subsidiaries and affiliates.



2.17 GS Inc. means The Goldman Sachs Group, Inc., and any successor thereto.



2.18 Investment Committee means a committee of two or more individuals selected by the
Administrative Committee, which shall have the authority to select the Notional Investments that
are made available from time to time under the Plan.



2.19 Maximum Aggregate Deferral Amount means, with respect to each Plan Year, $100 million or such
other amount as may be determined by GS Inc. from time to time



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by the Deferral Deadline for the Plan Year, which shall be the maximum total of all Deferrals for
all Participants permitted under the Plan for such Plan Year. GS Inc. may, in its discretion, not
later than the Deferral Deadline, (i) aggregate the Plan with such other deferred compensation plan
or plans as it may determine for purposes of applying the Maximum Aggregate Deferral Amount and
(ii) allocate the Maximum Aggregate Deferral Amount among the Plan and any deferred compensation
plans that are so aggregated with the Plan in any manner deemed appropriate by it.



2.20 Maximum Deferral Amount means, unless otherwise determined by GS Inc. by the Deferral
Deadline, with respect to each Participant for any Plan Year, the lesser of: (i) 35% of the
Participant’s Eligible Compensation and (ii) $350,000 for U.S. Extended Managing Directors or
$200,000 for any other Participant.



2.21 Minimum Deferral Amount means, with respect to each Participant for each Plan Year, $10,000 or
such other amount as may be determined by the Administrative Committee by the Deferral Deadline,
which shall be the minimum amount that a Participant may request as a Deferral for the Plan Year.



2.22 Minimum Eligible Compensation means total compensation of at least $200,000 or such other
amount as may be determined by the Administrative Committee by the Deferral Deadline. For purposes
of the foregoing, the Administrative Committee shall prescribe such rules and limitations as it
deems appropriate for purposes of taking into account the total compensation of any
commission-based Eligible Employee.



2.23 Net Commission means, for each Eligible Employee that is paid on a commission basis, with
respect to each Plan Year, the amount the Firm determines in its sole discretion would be paid in
cash to the Eligible Employee as a net cash commission after certain adjustments, including for
draws and payments to client analysts and certain other adjustments consistent with Firm practice
as in effect from time to time. For purposes of the foregoing, the Administrative Committee shall
prescribe such rules and limitations it deems appropriate for purposes of taking into account the
total compensation and adjustments to net commissions of any commission-based Eligible Employee.



2.24 Notional Investment means a hypothetical investment made available under the Plan by the
Investment Committee from time to time in which a Participant’s Account may be deemed to be
invested in whole or in part in accordance with Sections 5.2 and 5.3 hereof in order to measure the
value of the Account.



2.25 Participant means any Eligible Employee who participates in the Plan in accordance with
Article 3.



2.26 Plan means The Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan for U.S.
Extended Managing Directors and Other Select U.S. Employees, as amended.



2.27 Plan Year means the 12-month period that coincides with GS Inc.’s fiscal year.



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2.28 Separation from Service means a separation from service with the Firm as defined by the Firm
for purposes of the Plan in accordance with Section 409A of the Code.



2.29 Total and Permanent Disability means, with respect to any Participant, if such Participant is
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, or is, by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, receiving income replacement benefits for not
less than 3 months under any accident or health plan covering employees of the Firm.



ARTICLE 3

PARTICIPATION




3.1 Commencement of Participation




Any Eligible Employee who makes a Deferral Request shall, if and to the extent the Firm, in its
discretion, agrees to follow the request, become a Participant in the Plan as of the first Deferral
Date as of which a Deferral is credited to the Eligible Employee’s Account in accordance with
Section 4.2.



3.2 Continued Participation




A Participant in the Plan shall continue to be a Participant so long as any amount remains credited
to his or her Account.



ARTICLE 4

DEFERRALS




4.1 Deferral Request Form




Subject to the provisions of Article 4 hereof, for each Plan Year for which the Plan is in effect,
an Eligible Employee may, by properly completing a Deferral Request Form and filing it with the
Administrative Committee by the Deferral Deadline and before the amount of the Eligible
Compensation to which the Deferral relates has been determined (which in no event shall be later
than the last day of the Plan Year immediately preceding the Plan Year for which the Deferral
Request is made, unless the Administrative Committee determines that a later date is permitted
under Section 409A of the Code), request that a Deferral be made on his or her behalf, on such
terms as the Administrative Committee may permit in its sole discretion. The Firm reserves the
right, in its sole discretion, to reject any Deferral Request with respect to any Eligible Employee
at any time prior to the beginning of the Plan Year for which the Deferral Request is made.



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4.2 Mechanics of Deferral




Subject to the provisions of this Article 4, an Eligible Employee’s Eligible Compensation shall be
reduced in accordance with the Participant’s Deferral Request, and the amount of the resulting
Deferral shall be credited to the Participant’s Account as of the Deferral Date.



4.3 Minimum Deferral Amount




Notwithstanding anything herein or in any Deferral Request Form to the contrary, no Deferral shall
be for an amount and no Deferral Request shall be valid to the extent that it specifies an amount
less than the Minimum Deferral Amount for the applicable Plan Year.



4.4 Maximum Deferral Amount




Notwithstanding anything herein or in any Deferral Request Form to the contrary, no Deferral shall
be for an amount in excess of the Maximum Deferral Amount. If any amount specified on a Deferral
Request Form as a Deferral would exceed the Maximum Deferral Amount, such Deferral Request Form
shall be deemed to have specified the Maximum Deferral Amount.



4.5 Maximum Aggregate Deferral Amount




Notwithstanding anything herein or in any Deferral Request Form to the contrary, if and to the
extent that the aggregate amounts specified on all Deferral Request Forms in a Plan Year that the
Firm has not rejected exceed the Maximum Aggregate Deferral Amount, the amounts specified on each
Participant’s Deferral Request Form shall be reduced, and each Participants’ Deferrals shall be
reduced, under a formula or method determined by the Administrative Committee in its sole
discretion (as set forth in Appendix A hereto), including, without limitation, a pro rata reduction
to the ratio of the Maximum Aggregate Deferral Amount to the aggregate of the amounts specified by
all Participants on their Deferral Request Forms so that the aggregate Deferrals of all
Participants do not exceed the Maximum Aggregate Deferral Amount; provided that no Participant’s
Deferral shall be reduced to an amount below the Minimum Deferral Amount; and provided further that
such reductions shall be made by the Deferral Deadline.



4.6 Deferral Request Irrevocable




Except to the extent determined by the Administrative Committee (but in no event later than the
Deferral Deadline), all Deferral Requests shall be irrevocable when made, and no Participant may
change or revoke his or her Deferral Request with respect to Eligible Compensation payable for a
Plan Year.



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ARTICLE 5

ACCOUNTS




5.1 Accounts




The Administrative Committee shall maintain an Account for each Participant that reflects each
Participant’s Deferrals for each Plan Year (and with respect to any Participant paid on a
commission basis, any rate of interest credited from and including the date deferred through but
excluding the date the Deferrals are credited to his or her Account calculated in a manner
determined by the Administrative Committee), and any adjustments determined in accordance with
Section 5.2, forfeitures and any payments made under Article 7 with respect to the Account. The
Administrative Committee shall provide each Participant with a periodic statement of his or her
Account adjusted in accordance with Section 5.2.



5.2 Adjustment of Accounts




The amount of each Participant’s Deferral (and, with respect to any Participant paid on a
commission basis, the interest referred to in Section 5.1), for a Plan Year shall be credited to
the Participant’s Account as of the applicable Deferral Date. The Participant’s Account shall be
adjusted from time to time to reflect: (i) Deferrals for subsequent Plan Years, if any, which
shall each be separately accounted for; (ii) gains (or losses) determined as if the Account were
invested directly in the Notional Investment or Notional Investments selected by the Participant
(without taking into account any tax consequences that may have arisen were the Account so directly
invested); (iii) the amount described in Section 7.5; (iv) any payments under Article 7 in respect
of a Deferral; and (v) any administrative charge determined by the Compensation Policy Committee or
Administrative Committee in its sole discretion to be appropriate to cover part or all of the cost
to the Firm of making the Plan available to Participants or otherwise maintaining the Plan.



5.3 Notional Investments




     (a) The Notional Investment or Notional Investments that shall be available under the Plan
shall be determined from time to time by the Investment Committee in its sole discretion. The
Investment Committee may, in its sole discretion, provide limitations or procedures on the
availability of any Notional Investment or Notional Investments with respect to any Participant or
class of Participants. The Investment Committee may modify, amend, eliminate or replace any or all
of the Notional Investments that may be available under the Plan to Plan Participants or any of
them, in any manner in its sole discretion at any time from time to time with or without notice to
the Participants and effective retroactively or prospectively, subject to Section 9.3 hereof.



     (b) In selecting any Notional Investment or Notional Investments to be made available under
the Plan or prescribing any rules related thereto, the Investment Committee and the Administrative
Committee shall be acting solely on behalf of the



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Firm and not as a fiduciary or adviser with respect to any Deferral, any Participant or any
other person employed by the Firm or in respect of any Account. Each Participant, by requesting to
participate in the Plan, agrees that none of the Investment Committee, the Administrative
Committee, the Compensation Policy Committee, GS Inc., the Firm or any other person shall have any
liability whatsoever to any Participant or any other person as a result of, arising out of or
related to the selection or elimination or modification of Notional Investments, any monitoring of
any such Notional Investment or any Participant’s selection or failure to select any Notional
Investment.



     (c) The Administrative Committee or the Investment Committee may adopt such rules and
administrative practices as they, in their sole discretion, shall deem necessary or appropriate in
connection with any Participant’s ability to select Notional Investments hereunder, including
restrictions on the timing or frequency of such selections; all such Notional Investment selections
shall be made in such form as may be required by the Administrative Committee from time to time.



ARTICLE 6

VESTING




6.1 Accounts Generally Vested




Without limiting Section 7.6 or Section 10.1, each Participant shall be immediately vested in, and
shall have a nonforfeitable right to the balance credited to, the Participant’s Account subject to
the terms of the Plan, including without limitation Section 7.5 hereof.



ARTICLE 7

PAYMENTS




7.1 Commencement and Form of Payment




The Participant shall receive a payment of the entire portion of the Participant’s Account
attributable to a Deferral in a single lump sum as soon as practicable (but not later than the end
of the applicable calendar year described in clause (i) or (ii) below unless otherwise permitted
under Section 409A of the Code) after the earlier of (i) the applicable Distribution Date and (ii)
January of the year following the year in which the Participant incurs a Separation from Service;
provided that if the Firm determines such Participant to be a “specified employee” as defined by
the Firm in accordance with Section 409A(a)(2)(i)(B) of the Code, the Participant shall in no event
receive payment under clause (ii) before the date that is six (6) months following the
Participant’s Separation from Service.



7.2 Distribution Date




In accordance with procedures established by the Administrative Committee in its sole discretion,
at the time each Participant makes a Deferral Request, the Participant shall select a Distribution
Date with respect to a Deferral. Unless otherwise determined by the Administrative Committee in
its sole discretion, a Participant shall be permitted to



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request only one of the following as a Distribution Date with respect to a Deferral: (i) the third
anniversary of the Deferral Date, (ii) the fourth anniversary of the Deferral Date or (iii) the
fifth anniversary of the Deferral Date; provided that the Administrative Committee shall exercise
such discretion only prior to the Deferral Deadline and only to the extent that it does not result
in a failure to comply with Section 409A of the Code.



7.3 Death and Total and Permanent Disability




     (a) If a Participant dies prior to the payment of the entire balance credited to his or her
Account and notwithstanding any Participant’s request pursuant to Section 7.2, all amounts credited
to his or her Account shall be paid in one lump sum after the date of death and not later than the
end of the calendar year in which death occurs to the representative of the Participant’s estate.
No payment shall be made to the representative of a Participant’s estate unless the Administrative
Committee shall have been furnished with such evidence and other documentation as it shall deem
necessary or appropriate to establish the validity of the payment and satisfy the Firm’s legal
obligations. Notwithstanding any provision of Section 10.2 to the contrary, the Administrative
Committee may adopt procedures pursuant to which a Participant may be permitted to specifically
bequeath some or all of the amounts credited to his or her Account under his or her 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 Administrative Committee).



     (b) If a Participant has a Total and Permanent Disability prior to the payment of the entire
balance credited to his or her Account and notwithstanding any Participant’s request pursuant to
Section 7.2, such balance shall be paid in one lump sum after the date the Participant suffers the
Total and Permanent Disability and not later than the end of the calendar year in which the
Participant suffers the Total and Permanent Disability to the Participant or if the Participant is
determined by the Administrative Committee, in its sole discretion, to be incompetent by reason of
physical or mental disability, to another person for the benefit of the Participant, without
responsibility on the part of the Administrative Committee, the Firm or any other person to monitor
the application or use of such funds. No payment shall be made to the Participant or such other
person unless the Administrative Committee shall have been furnished with such evidence and other
documentation as it shall deem necessary or appropriate to establish the validity of the payment
and satisfy the Firm’s legal obligations.



7.4 Taxes and Social Security




All Federal, State, foreign, local, hypothetical or other taxes, or social security or social
insurance charges, if any, that are required to be withheld in respect of any Deferrals hereunder
or from any payments made pursuant to this Article 7 shall be withheld from amounts payable
hereunder (at the time payable) or from any other amounts payable to a Participant by any person.



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7.5 Certain Account Adjustments




     (a) Unless otherwise determined by the Administrative Committee in a manner consistent with
Section 409A of the Code, the amount payable on a Distribution Date to any Participant under the
Plan shall be net of, and a Participant’s Account shall be adjusted to reflect on such Distribution
Date, any outstanding amounts (including, without limitation, travel and entertainment or advance
account balances, loans, or amounts repayable to the Firm pursuant to tax equalization, housing,
automobile or other employee programs) the Participant owes to the Firm (including by reason of any
obligations of such Participant under any Firm sponsored investment program, including under the
Firm’s “Special Investments Program”), any amounts owed to the Firm by reason of such Participant’s
misconduct with respect to such Participant’s employment with the Firm, including, without
limitation, the Participant’s misappropriation of funds or other property from the Firm, and any
amount the Administrative Committee otherwise deems appropriate pursuant to any tax equalization
policy or agreement or otherwise applicable as of such Distribution Date; provided that any such
adjustments shall be limited to $5,000 in the aggregate for any Participant in any calendar year
and shall comply with the other requirements of Treasury Regulation § 1.409A-3(j)(4)(xiii), except
to the extent otherwise permitted under Section 409A of the Code and Treasury Regulation §
1.409A-3(j)(4)(xiii).



     (b) If a Participant owes amounts to the Firm as described in Section 7.5(a) and fails, upon
demand, to reimburse or pay the Firm, then, as an alternative to the adjustment provided for in
Section 7.5(a), the Administrative Committee may, in its discretion, determine that the amount of
the payment to which the Participant is entitled hereunder shall not include any notional gains or
earnings that would have increased the balance credited to the Participant’s Account in accordance
with Article V and that all such notional gains and earnings shall be forfeited.



     (c) Each Participant shall be required, as a condition to participation in the Plan, to sign
such documents, and make such representations and consents, as may be deemed necessary or
appropriate by the Administrative Committee to comply with this Section 7.5.



7.6 Certain Delayed Payments to Covered Employees




Notwithstanding anything herein or in any Deferral Request Form to the contrary, if and to the
extent that the Administrative Committee reasonably anticipates that GS Inc.’s or the Firm’s U.S.
Federal tax deduction in respect of a payment under the Plan would be limited as a result of
Section 162(m) of the Code or any successor section of the Code, the Administrative Committee may
delay such Payment until such time or times as GS Inc. or the Administrative Committee determines,
in its sole discretion, that neither GS Inc.’s nor the Firm’s deduction for any such payment will
be limited as a result of Section 162(m) of the Code, provided that the conditions of Treasury
Regulation § 1.409A-2(b)(7)(i) are satisfied .



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7.7 Payment Currency




Unless otherwise determined by the Administrative Committee in its discretion, any payments under
the Plan shall be made in the same currency in which the Participant’s bonus or commissions
otherwise would have been paid, in the absence of the Plan.



7.8 Payment to Escrow Account




Payment of the Participant’s Account attributable to a Deferral may be made, if and to the extent
elected by the Administrative Committee, initially into an escrow account meeting such terms and
conditions as are determined by the Firm until the Administrative Committee has received such
documentation as it may have requested (pursuant to Section 7.3 or otherwise) or until the
Administrative Committee has determined that any other conditions or restrictions on payment
required by this Plan (including, without limitation, Sections 7.4 and 7.5) have been satisfied. By
becoming a Participant in the Plan, each Participant has agreed on behalf of himself or herself or
his or her estate (or other permitted beneficiary) that the Firm may establish and maintain an
escrow account on such terms and conditions (which may include, without limitation, the Participant
(or estate or beneficiary) paying for any costs associated with such escrow account) as the Firm
may deem necessary or appropriate.



ARTICLE 8

ADMINISTRATIVE COMMITTEE; INDEMNIFICATION




8.1 Plan Administration and Interpretation




The Plan shall be administered by the Administrative Committee. The Administrative Committee shall
have complete control and authority to administer the Plan, and authority to determine the rights
and benefits and all claims, demands and actions arising out of the provisions of the Plan of any
Participant, representative of a deceased Participant’s estate, or any other person having or
claiming to have any interest under the Plan. The Administrative Committee shall have complete
discretion and power to interpret the Plan and to decide all matters under the Plan. Any
interpretation or decision by the Administrative Committee shall be final, conclusive and binding
on all Participants and any person claiming under or through any Participant. Any individual
serving on the Administrative Committee who also is a Participant shall not vote or act on any
matter relating solely to himself or herself. When making a determination or calculation, the
Administrative Committee shall be entitled to rely on information furnished by a Participant or
other person entitled to payment hereunder, or the Firm. The Administrative Committee shall adopt
such claims procedures as it determines in its sole discretion may be necessary or appropriate for
the proper determination of the rights of any Participant under this Plan.



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8.2 Powers, Duties, Procedures, Etc.




In exercising its powers and duties, the Administrative Committee may adopt such rules and
procedures, appoint such officers or agents, delegate such powers and duties and receive such
reimbursements and compensation, in each case, as it may establish or determine from time to time
consistent with the provisions of the Plan.



8.3 Indemnification of Administrative Committee and Investment Committee




No member of the Administrative Committee or Investment Committee or any employee, officer or
director of the Firm (each such person, a “Covered Person”) shall have any liability to any person
(including any Participant) for any action taken or omitted to be taken or any determination made
in good faith with respect to the Plan. Each Covered Person shall be indemnified and held harmless
by GS Inc. against and from: (a) any loss, cost, liability or expense (including attorneys’ fees)
that may be imposed upon or incurred by such Covered Person in connection with or resulting from
any action, suit or proceeding to which such Covered Person may be a party or in which such Covered
Person may be involved by reason of any action taken or omitted to be taken under the Plan and (b)
any and all amounts paid by such Covered Person, with GS Inc.’s approval, in settlement thereof, or
paid by such Covered Person in satisfaction of any judgment in any such action, suit or proceeding
against such Covered Person, provided that GS Inc. shall have the right, at its own expense, to
assume and defend any such action, suit or proceeding and, once GS Inc. gives notice of its intent
to assume the defense, GS Inc. shall have sole control over such defense with counsel of GS Inc.’s
choice. The foregoing right of indemnification shall not be available to a Covered Person to the
extent that a court of competent jurisdiction in a final judgment or other final adjudication, in
either case not subject to further appeal, determines that the acts or omissions of such Covered
Person giving rise to the indemnification claim resulted from such Covered Person’s bad faith,
fraud or willful criminal act or omission. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which Covered Persons may be entitled under GS
Inc.’s Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws, as a
matter of law, or otherwise, or any other power that GS Inc. may have to indemnify such persons or
hold them harmless. Without limiting the generality of this Section 8.3, the actions referred to in
the first two sentences and other provisions of this Section 8.3 include any action taken or
omitted to be taken by reason of or in relation to Section 409A.



ARTICLE 9

AMENDMENT AND TERMINATION




9.1 Amendments




Subject only to Section 9.3 hereof, GS Inc. shall have the right, in its sole discretion, to amend
or modify the Plan in any respect from time to time, including in any manner that adversely affects
the right of any Participant. Any such amendment may be effected by an action of the Board of
Directors or the Compensation Policy Committee. In addition,



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and without limiting the foregoing, to the maximum extent permissible under Section 409A of the
Code, including as permitted under Treasury Regulation § 1.409A-3(j)(4), the Administrative
Committee shall have the right, in its sole discretion, to accelerate any payment to any or all
Participants to any date or dates prior to the Distribution Date.



9.2 Termination of Plan




This Plan is a strictly voluntary undertaking on the part of GS Inc. and shall not be deemed to
constitute a contract between GS Inc. and any Eligible Employee (or any other person). Subject
only to Section 9.3 hereof, GS Inc. reserves the right to terminate the Plan at any time with
respect to any or all Participants, in whole or in part, by an instrument in writing that has been
executed on the Firm’s behalf by its duly authorized officer. Upon termination, with respect to
each Participant affected by any termination (an “Affected Participant”) on a
Participant-by-Participant basis the Firm shall (a) continue to maintain the Affected Participant’s
Account and pay amounts hereunder as they become due as if the Plan had not terminated, or, at the
Firm’s election, if and to the extent permitted under Section 409A of the Code and Treasury
Regulations section 1.409A-3(j)(4)(ix), (b) pay promptly to each Affected Participant (or such
Affected Participant’s estate) the balance of the Affected Participant’s Account (or combine, in
any manner permitted under Section 409A of the Code and Treasury Regulations section
1.409A-3(j)(4)(ix), the alternatives described in Sections 9.2(a) and 9.2(b) hereof).



9.3 Existing Rights




No amendment or modification to, or termination of, the Plan shall be effective to the extent that
it reduces the amount credited to a Participant’s Account immediately prior to the amendment,
modification or termination, without the Participant’s prior written consent.



ARTICLE 10

MISCELLANEOUS




10.1 No Funding




The Plan constitutes a mere promise by GS Inc. to make payments in accordance with the terms of the
Plan, and Participants and beneficiaries shall have the status with respect to the amounts credited
to their Accounts from time to time only of general unsecured creditors of GS Inc. Nothing in the
Plan will be construed to give any Participant or any other person rights to any specific assets of
GS Inc., the Firm or any other person. In all events, it is the intent of GS Inc. that the Plan be
treated in a manner consistent with the applicable provisions of Section 409A of the Code and be
treated as unfunded for U.S. Federal tax purposes and for purposes of ERISA, and the Plan shall be
interpreted accordingly.



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10.2 Non-Assignability




None of the benefits, payments, proceeds or claims of any Participant or any other person shall be
subject to any claim of any creditor of any Participant or any other person and, in particular,
such benefits, payments, proceeds or claims shall not be subject to attachment or garnishment or
other legal process by any creditor of such Participant or other person, nor shall any Participant
or any other person have any right to alienate, participate, hedge, commute, pledge, encumber or
assign any of the benefits, payments, proceeds or claims that he or she may expect to receive,
contingently or otherwise, under the Plan and any attempt to so alienate, participate, hedge,
commute, pledge, encumber or assign any such benefit, payment, proceed or claim shall be null and
void and of no force or effect, except as otherwise provided in Section 7.3(a). Notwithstanding
any provision of this Section 10.2 to the contrary, the Administrative Committee may adopt
procedures pursuant to which a Participant may transfer some or all of the amounts credited to his
or her Account through a gift for no consideration to any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, any person
sharing the recipient’s household (other than a tenant or employee), a trust in which these persons
have more than 50% of the beneficial interest, and any other entity in which these persons (or the
recipient) own more than 50% of the voting interests.



10.3 Limitation of Participants’ Rights




Nothing contained in the Plan shall confer upon any person a right to continue to be employed by
the Firm or shall affect any right the Firm may have to terminate or alter the terms and conditions
of a Participant’s employment.



10.4 Participants Bound




Any action with respect to the Plan taken by the Administrative Committee, the Investment
Committee, the Compensation Policy Committee, the Board of Directors, the Firm or any action
authorized by or taken at the direction of any of them, shall be final, binding and conclusive upon
all Participants (and any other persons).



10.5 Benefits Conditioned on Release




Any payment to any Participant made in accordance with the provisions of the Plan shall, to the
extent thereof, be in full satisfaction of all claims against the Firm, the Plan, the
Administrative Committee and the Investment Committee. The Administrative Committee may require a
Participant, as an express condition precedent to any payment hereunder, to execute a release to
such effect provided that no such requirement shall cause payment to be delayed beyond the time
permitted in accordance with Section 409A of the Code, and that, if a release is required but not
provided, the amount of the payment to which the Participant is entitled hereunder may not include
any notional gains or earnings that would have increased the balance credited to the Participant’s
Account in accordance with Article V, and all such notional



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gains and earnings may be forfeited, if so determined by the Administrative Committee. If any
Participant or other person entitled to payment hereunder is determined by the Administrative
Committee to be incompetent by reason of physical or mental disability to give a valid release, the
Administrative Committee may cause the payment or payments becoming due to such person to be made
to another person for his or her benefit without responsibility on the part of the Administrative
Committee, the Firm or any other person to follow the application or use of such funds.



10.6 Arbitration; Choice of Forum




     (a) Any dispute, controversy or claim between the Firm and a Participant arising out of or
relating to or concerning the Plan shall be finally settled by arbitration in New York City before,
and in accordance with the rules then obtaining of, the New York Stock Exchange, Inc. (the “NYSE”)
or, if the NYSE declines to arbitrate the matter (or if the matter otherwise is not arbitrable by
it), the American Arbitration Association (the “AAA”) in accordance with the commercial arbitration
rules of the AAA. Prior to arbitration, all claims maintained by a Participant or any other person
must first be submitted to the Administrative Committee in accordance with claims procedures
determined by the Administrative Committee. This Paragraph is subject to the provisions of
Paragraphs (b) and (c) below.



     (b) THE FIRM AND EACH PARTICIPANT SHALL IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED IN THE CITY OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO OR CONCERNING THE PLAN THAT IS NOT OTHERWISE ARBITRATED OR RESOLVED
ACCORDING TO PARAGRAPH 10.6(a) HEREOF. This includes any suit, action or proceeding to compel
arbitration or to enforce an arbitration award. The Firm and each Participant, by requesting to
participate in the Plan, acknowledge that the forum designated by this Paragraph (b) has a
reasonable relation to the Plan and to the Participant’s relationship with the Firm.
Notwithstanding the foregoing, nothing herein shall preclude the Firm from bringing any action or
proceeding in any other court for the purpose of enforcing the provisions of this Section 10.6 or
otherwise.



     (c) This provision as to forum is independent of the law that may be applied in the suit,
action or proceeding, and each Participant, by requesting to participate in the Plan, and the Firm
agrees to such forum even if the forum may under applicable law choose to apply non-forum law.
Each Participant, by requesting to participate in the Plan and the Firm hereby waive, to the
fullest extent permitted by applicable law, any objection which the Participant or the Firm now or
hereafter may have to personal jurisdiction or to the laying of venue of any such suit, action or
proceeding in any court referred to in Paragraph (b) of this Section 10.6. Each Participant, by
requesting to participate in the Plan, and the Firm undertake not to commence any suit, action or
proceeding arising out of or relating to or concerning the Plan in any forum other than a forum
described in this Section 10.6. Each Participant, by requesting to participate in the Plan, and
the Firm agree that, to the fullest extent permitted by applicable law, a



15









 







final and non-appealable judgment in any such suit, action or proceeding in any such court
shall be conclusive and binding upon the Participant and the Firm.



     (d) Each Participant, by requesting to participate in the Plan, irrevocably appoints the
General Counsel of GS Inc. as the Participant’s agent for service of process in connection with any
action or proceeding arising out of or relating to or concerning the Plan that is not arbitrated
pursuant to the provisions of this Section 10.6, who shall promptly advise the Participant of any
such service of process.



     (e) Each Participant, by requesting to participate in the Plan, agrees to keep confidential
the existence of, and any information concerning, a dispute, controversy or claim described in this
Section 10.6, except that a Participant may disclose information concerning such dispute,
controversy or claim to the arbitrator or court that is considering such dispute, controversy or
claim or to his or her legal counsel (provided that such counsel agrees not to disclose any such
information other than as necessary to the prosecution or defense of the dispute, controversy or
claim).



10.7 Governing Law




The Plan shall be construed, administered and governed in all respects under and by the laws of the
State of New York, without reference to the principles of conflicts of law (except if and to the
extent preempted by applicable Federal law). It is the intent of GS Inc. that this Plan be
considered and interpreted in all respects as part of a bonus plan within the meaning of U.S.
Department of Labor Regulation Section 2510.3-2(c) and not in any respect as an employee pension
plan for purposes of ERISA. If and to the extent that any portion of this Plan shall be determined
to be an employee pension benefit plan subject to ERISA, then such portion shall be considered a
separate plan covering only those Participants as to whom this Plan is determined to be a pension
plan. Such pension plan shall in all respects be considered and interpreted as a plan which is
unfunded and maintained primarily for the purpose of providing deferred compensation for a select
group of management or highly compensated employees and exempt from coverage of Parts 1, 2, 3 and 4
of Subtitle B of Title I of ERISA to the maximum extent permissible under the provisions thereof.
Further, it is the intent of GS Inc. that this Plan be considered and interpreted in all respects
as a nonqualified deferred compensation plan satisfying the requirements of Section 409A of the
Code and deferring the recognition of income by Participants in respect of Deferrals until amounts
are actually paid to them pursuant to Article 7.



10.8 Certain Consents




As a condition of participating in the Plan, each Eligible Employee wishing to make a Deferral
Request, and each Participant, shall be required to sign such documents, make such representations
and sign such consents, including, without limitation signing any consent or taking any other
action necessary for the Firm to insure the life of the Participant and name itself as beneficiary
to the extent deemed necessary or appropriate of such insurance.



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Without limiting the foregoing, by submitting a Deferral Request Form, a Participant will have
irrevocably agreed to consent to (i) the Firm’s supplying to any third party recordkeeper such
personal information as the Administrative Committee deems advisable to administer the Plan, (ii)
the Firm’s deducting amounts from the Participant’s wages to reimburse the Firm for any advances
made on the Participant’s behalf to satisfy any withholding and other tax obligations, (iii) the
Firm’s deducting or withholding from any payment or distribution to the Participant, whether or not
pursuant to the Plan, the amount of any taxes (including, without limitation, FICA, National
Insurance Contributions, if applicable, or social insurance taxes) the Administrative Committee
determines apply in connection with any Deferral or distribution under the Plan, (iv) withholding
from any distribution under the Plan, but only to the extent permitted under Section 7.5(a) hereof,
any amount the Administrative Committee determines is payable by the Participant to the Firm, and
(v) forfeiture of the Participant’s notional gains and earnings in the circumstances specified in
Sections 7.5(b) and 10.5 hereof.



10.9 Currency Conversions




The Administrative Committee, in its discretion, shall have the authority to prescribe such rules
and procedures as it may deem appropriate for purposes of converting any currency into another
currency for purposes of the Plan including, without limitation, for purposes of determining (i)
the Minimum Deferral Amount, (ii) the Maximum Deferral Amount, (iii) the Maximum Aggregate Deferral
Amount, (iv) the amount of any Eligible Employee’s Deferral, (v) the amount of any investment gains
or losses to be allocated to a Participant’s Account, (vi) the amount of any distribution, (vii)
the amount of any Participant’s Eligible Compensation and (viii) the amount of any Participant’s
Minimum Eligible Compensation. The determination of the exchange rate by the Administrative
Committee shall be conclusive.



10.10 Non-Uniform Determinations




None of the Administrative Committee’s determinations under the Plan need to be uniform and any
such determinations may be made by it selectively among persons who make Deferral Requests under
the Plan (whether or not such persons are similarly situated). Without limiting the generality of
the foregoing, the Administrative Committee shall be entitled, among other things, to make
non-uniform and selective determinations with regard to Deferrals, currency conversions and
availability of Notional Investments, and to enter into non-uniform and selective Deferral
Requests, as to (a) the persons permitted to make Deferrals, (b) the terms and provisions of any
Deferral, and (c) any adjustments to be made with respect to any Deferral as described herein.



10.11 Severability; Entire Agreement




If any of the provisions of this Plan is finally held to be invalid, illegal or unenforceable
(whether in whole or in part), such provision shall be deemed modified to the extent, but only to
the extent, of such invalidity, illegality or unenforceability and the remaining provisions shall
not be affected thereby. Each Participant, by requesting to participate in the Plan, acknowledges
that the Plan contains the entire agreement of the parties



17









 







with respect to the subject matter thereof and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations and warranties between them, whether
written or oral with respect to the subject matter thereof.



10.12 No Third Party Beneficiaries




The Plan shall not confer on any person other than the Firm and the Participants any rights or
remedies thereunder; provided that the exculpation and indemnification provisions of Section 8.3
shall inure to the benefit of a Covered Person’s estate, beneficiaries and legatees.



10.13 Headings and Subheadings




Headings and subheadings in this Plan are inserted for convenience only and are not to be
considered in the construction of the provisions hereof.



10.14 Compliance With Section 409A of the Code




     (a) This Plan is intended and shall be construed to comply with Section 409A of the Code. The
Administrative Committee shall have full authority to give effect to this intent. To the extent
necessary to give effect to this intent, in the case of any conflict or potential inconsistency
between this Section 10.14 and the other provisions of this Plan, this Section 10.14 shall govern.



     (b) Any amount that constitutes 409A deferred compensation may be paid, in the discretion of
the Administrative Committee, later than the Distribution Date or other date or period specified
hereinabove to the extent that the later date is permitted under Section 409A of the Code.



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Appendix A





	 	n 	 	For 2007 NQDC, aggregate plan cap for deferrals across all four plans1 of
$200M; cap for each separate plan (PMD and non-PMD plan) of $100M; individual participation
caps are $1 Million for PMDs, $350,000 for EMDs, and $200,000 for non-MDs.






	 	3⁄4 	 	If aggregate requests across PMD and non-PMD plans are under aggregate plan cap, no
individual scale-back is required (i.e., transfer excess capacity from one plan or more
plans to the other(s) as needed); if requests are over aggregate plan cap, apply the
following scale-back methodology:






	 	o		If only one plan (e.g., Plan A) exceeds its cap, transfer excess
capacity from the other plan(s), and then reduce all requests in Plan A pro-rata by
percentage needed to achieve plan cap
	 
	 	o	 	If both plans exceed their respective caps, reduce all requests within
plans pro-rata by respective percentage needed to achieve plan cap





Example





	 	3⁄4	 	Aggregate requests for all plans of $210 (over aggregate cap by $10)
	 
	 	3⁄4	 	 PMD deferral requests = $120 (over plan cap by $20); non-PMD deferral requests =
$90 (under plan cap by $10)
	 
	 	3⁄4	 	 Transfer $10 from non-PMD plan to PMD plan (PMD plan cap increases to $110, $10
less than total PMD deferral requests)
	 
	 	3⁄4	 	Reduce all deferral requests under PMD plan pro-rata by 8.3% ($10/$120)





	 	 	 	 	 	 	 	 	 
	 	 	PMD Plan	 	 	Non-PMD Plan	 
	Plan Cap
	 	$	100	 	 	$	100	 
	Deferral Requests
	 	$	120	 	 	$	90	 
	 
	 	 	 	 	 	 
	Amount in Excess of Plan Cap
	 	$	(20	)	 	$	10	 
	Transfer Amount
	 	$	10	 	 	$	(10	)
	“Adjusted” Plan Cap
	 	$	110	 	 	$	90	 
	Pro-rata Reduction of Deferral Requests (8.3%)
	 	$	(10	)	 	 	N/A	 
	Final Participation
	 	$	110	 	 	$	90	 








 




			
	1	 	These are The Goldman Sachs Group, Inc. Non-Qualified
Deferred Compensation Plan for U.S. Participating Managing Directors, The
Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan for U.S.
Extended Managing Directors and Other Select U.S. Employees, The Goldman Sachs
Group, Inc. Non-Qualified Deferred Compensation Plan for U.K. Participating
Managing Directors, and The Goldman Sachs Group, Inc. Non-Qualified Deferred
Compensation Plan for U.K. Extended Managing Directors and Other Select U.K.
Employees.






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