EX-10.46



 




 EXHIBIT 10.46



THE GOLDMAN SACHS

AMENDED AND RESTATED STOCK INCENTIVE PLAN

OUTSIDE DIRECTOR                     




          This Award Agreement sets forth the terms and conditions of an Award of RSUs granted to
you under The Goldman Sachs Amended and Restated Stock Incentive Plan (the “Plan”) as of                     .




          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 which are not
defined in this Award Agreement have the meanings as used or defined in the Plan.




          2. Award. ___RSUs are subject to this Award. Each RSU constitutes an unfunded
and unsecured promise of GS Inc. to deliver (or cause to be delivered) to you, subject to the terms
of this Award Agreement, one share of Common Stock (a “Share”) (or cash or other property equal to
the Fair Market Value thereof) on the Delivery Date as provided herein. Until such delivery, you
have only the rights of a general unsecured creditor and no rights as a shareholder of GS Inc.
This Award is subject to all terms and provisions of the Plan and this Award Agreement.




          3. Delivery.




          (a) In General. Except as provided below in this Paragraph 3 and subject to
Paragraphs 6 and 7, the Delivery Date shall be on the last Business Day in May in the year
following the year in which you cease to be a director of the GS Inc. Board. The Firm may deliver
cash or other property in lieu of all or any portion of the Shares otherwise deliverable on the
Delivery Date. Unless otherwise determined by the Committee, or as otherwise provided in this
Award Agreement, delivery of Shares shall be effected by book-entry credit to the Custody Account
or to a brokerage account, as approved or required by the Firm. No delivery of Shares shall be
made unless you have timely established the Custody Account or a brokerage account, as approved or
required by the Firm. You shall be the beneficial owner of any Shares properly credited to the
Custody Account or delivered to a brokerage account, as approved or required by the Firm. You
shall have no right to any dividend or distribution with respect to such Shares if the record date
for such dividend or distribution is prior to the date the Custody Account or brokerage account, as
approved or required by the Firm, is properly credited with such Shares.




          (b) Death. Notwithstanding any other Paragraph of this Award Agreement, if you die
prior to the Delivery Date, the Shares (or cash or other property in lieu of all or any portion
thereof) corresponding to your Outstanding RSUs shall be delivered to the representative of your
estate as soon as practicable after the date of death and after such documentation as may be
requested by the Committee is provided to the Committee. The Committee may adopt procedures
pursuant to which you may be permitted to specifically bequeath some or all of your Outstanding
RSUs under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or
such other similar charitable organization as may be approved by the Committee).




 









 





          4. Dividend Equivalent Rights. Prior to the delivery of Shares (or cash or other
property in lieu thereof) pursuant to this Award Agreement, at or after the time of distribution of
any regular cash dividend paid by GS Inc. in respect of the Common Stock, you shall be entitled to
receive an amount in cash or other property equal to such regular cash dividend payment that would
have been made in respect of the Shares not yet delivered, as if the Shares had been actually
delivered.




          5. Non-transferability. Except as may otherwise be provided in this Paragraph or as
otherwise may be provided by the Committee, the limitations set forth in Section 3.5 of the Plan
shall apply. Any assignment in violation of the provisions of this Paragraph 5 shall be void. The
Committee may adopt procedures pursuant to which you may transfer some or all of your RSUs 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.




          6. Conflicted Employment. Notwithstanding anything in this Award Agreement to the
contrary, if you accept employment at any U.S. Federal, state or local government, any non-U.S.
government, any supranational or international organization, any self-regulatory organization or
any agency, or instrumentality of any such government or organization, or any other employer
determined by the Committee, and as a result of such employment, your continued holding of your
Outstanding RSUs would result in an actual or perceived conflict of interest (“Conflicted
Employment”), then you shall receive, at the sole discretion of the Firm, either a lump sum cash
payment or a delivery of the underlying Shares in respect of your then Outstanding RSUs, in each
case as soon as practicable after the Committee has received satisfactory documentation relating to
your Conflicted Employment; provided, however, that payment or delivery in respect of RSUs as a
result of this Paragraph shall be made only at such time and if and to the extent as would not
result in the imposition of any additional tax to you under Section 409A of the Code (which governs
the taxation of certain deferred compensation).




          7. Withholding, Consents and Legends.




          (a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding
taxes in accordance with Section 3.2 of the Plan, provided that the Committee may determine not to
apply the minimum withholding rate specified in Section 3.2.2 of the Plan.




          (b) Your rights in respect of the RSUs are conditioned on the receipt to the full satisfaction
of the Committee of any required consents (as defined in Section 3.3 of the Plan) that the
Committee may determine to be necessary or advisable, and by accepting this Award, you agree to the
matters described in Section 3.3.3(d) of the Plan.




-2-









 





          (c) 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. GS Inc. may
advise the transfer agent to place a stop order against any legended Shares.




          8. Successors and Assigns of GS Inc. The terms and conditions of this Award Agreement
shall be binding upon and shall inure to the benefit of GS Inc. and its successors and assigns.




          9. Amendment. The Committee reserves the right at any time to amend the terms and
conditions set forth in this Award Agreement in any respect in accordance with Section 1.3 of the
Plan, and the Board may amend the Plan in any respect in accordance with Section 3.1 of the Plan.
Notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(h) and 3.1 of the Plan, no such
amendment shall materially adversely affect your rights and obligations under this Award Agreement
without your consent (or the consent of your estate, if such consent is obtained after your death),
except that the Committee reserves the right to accelerate the delivery of the Shares and in its
discretion provide that such Shares may not be transferable until the Delivery Date. Any amendment
of this Award Agreement shall be in writing signed by an authorized member of the Board or any
other person or persons authorized by the Board.




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




          11. 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.



-3-














 


          IN WITNESS WHEREOF, GS Inc. and you have caused this Award Agreement to be duly executed and
delivered.



Date:                     




	 	 	 	 	 
	 

	 	THE GOLDMAN SACHS GROUP, INC.
	 
	 	 	 	 
	 
	 	By:	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 





Accepted and Agreed:



By:                                         



-4-