EX-10.35



 





EXHIBIT
10.35
THE GOLDMAN SACHS AMENDED AND RESTATED

STOCK INCENTIVE PLAN

           RESTRICTED STOCK AWARD FOR CERTAIN PERSONS

WHO PROVIDED SERVICES IN HONG KONG AND/OR SINGAPORE




          This Award Agreement sets forth the terms and conditions of the            Restricted Stock Award
(this “Award”) under The Goldman Sachs Amended and Restated Stock Incentive Plan (the “Plan”)
provided in connection with your Outstanding Restricted Stock Unit Awards which were Vested while
you provided services in Hong Kong and/or Singapore (including those for which you were otherwise
determined by the Firm to be retirement eligible) as of                                          (your “RSU Awards”). The
Delivery Date of the Shares underlying your RSU Awards was accelerated to                                         , in the
form of Restricted Shares (“Restricted Shares”) governed by this Award Agreement. Except as
provided in the Appendix hereto, the terms of this Award are as follows:




          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. This Award is made up of a number of Restricted Shares equal to the number
of your RSUs Awards. A Restricted Share is a share of Common Stock (“Share”) delivered under the
Plan that is subject to certain transfer restrictions and other terms and conditions described in
this Award Agreement.




          3. Certain Material Terms of Restricted Shares.




          (a) Vesting. You shall be Vested in all of your Restricted Shares. While
continued active Employment is not required in order for your Restricted Shares to become fully
transferable without risk of forfeiture, all other terms and conditions of this Award Agreement
(including the Transfer Restrictions described in Paragraph 3(c)) shall continue to apply to such
Restricted Shares, and failure to meet such terms and conditions may result in the forfeiture of
all of your rights in respect of the Restricted Shares and their return to GS Inc. and the
cancellation of this Award.




          (b) Delivery. Except as provided in this Paragraph 3 and in Paragraph 2,
the Restricted Shares shall be delivered to an escrow account, a custody account or to a brokerage
account, as approved or required by the Firm, and, except as provided in this Paragraph 3 and in
Paragraphs 7, 8, 10 and 11, shall be subject to the Transfer Restrictions described in Paragraph
3(c).




          (c) Transfer Restrictions; Escrow.





          (i) Except as provided in Paragraphs 3(d), 4, 8, and 10, until the original
Delivery Date of your RSU Awards (the “Transferability Date”): (i) your Restricted 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 (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 Restricted Shares are
certificated, the certificates representing your Restricted Shares shall bear a legend
specifying that your Restricted Shares are subject to the restrictions described



 











 







in this Award Agreement, and GS Inc. in any case may advise its transfer agent to place
a stop order against any transfer of your Restricted Shares not in compliance with the
Transfer Restrictions. Within 30 Business Days after the Transferability Date (or any other
date described herein that 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
in respect of any of your Restricted Shares that have not been previously forfeited.




          (ii) Delivery of the Restricted Shares may be made directly into an escrow or custody
account for your benefit meeting such terms and conditions as are determined by the Firm,
provided that any other conditions or restrictions on delivery of Shares required by this
Award Agreement have been satisfied. On behalf of yourself (and your estate or other
permitted beneficiary), the Firm may establish and maintain an escrow or custody account for
your benefit on such terms and conditions as the Firm may deem necessary or appropriate.
Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that the
escrow agent shall have the exclusive authority to exercise voting rights with respect to
such Shares while held in escrow.



          (d) Death; Additional Taxes. Notwithstanding any other provision of this Award
Agreement, if you die prior to the Transferability Date with respect to your Restricted 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, the Transfer Restrictions then applicable to your
Restricted Shares shall be removed. The Committee may adopt procedures pursuant to which you may
be permitted to specifically bequeath some or all of your Restricted Shares 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. Termination of Employment. Unless the Committee determines otherwise, and except
as provided in Paragraphs 3(d), 7, 8 and 10, if your Employment terminates for any reason or you
otherwise are no longer actively employed with the Firm, the Transfer Restrictions shall continue
to apply to your Restricted Shares until the Transferability Date in accordance with Paragraph 3(c)
hereof.




          5. Forfeiture of Restricted Shares. Unless the Committee determines otherwise, and
except as provided in Paragraph 7 and 8, your rights in respect of all of your Restricted Shares
immediately shall be forfeited, such Shares immediately shall be returned to GS Inc. and this Award
immediately shall be cancelled, if, before the Transferability Date:




          (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) (A) you, in any manner, directly or indirectly, (1) Solicit any Client to transact
business with a Competitive Enterprise or to reduce or refrain from doing any business with the
Firm, (2) interfere with or damage (or attempt to interfere with or damage) any relationship
between the Firm and any Client, (3) 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 (4) 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, or (B) Selected
Firm Personnel are Solicited, hired or accepted into partnership, membership or similar status (1)
by a Competitive Enterprise that you form, that bears your name, in which you are a partner, member
or have similar status, or in which you possess or control




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greater than a de minimis equity ownership, voting or profit participation or (2) by any
Competitive Enterprise where you have, or are intended to have, direct or indirect managerial or
supervisory responsibility for such Selected Firm Personnel;




          (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. On the
Transferability Date, you shall be deemed to have represented and certified 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, the Firm’s notice period requirement
applicable to you, any offer letter, employment agreement or any 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 for the expiration of the Transfer Restrictions with respect to this Award 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. For the avoidance
of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm,
shall constitute failure to meet an obligation you have under an agreement referred to in Paragraph
5(e) regardless of whether such obligation arises under a written agreement, and/or a material
violation of Firm policy constituting Cause referred to in Paragraph 5(b)).




          6. Repayment and Forfeiture. The provisions of Section 2.5.2 of the Plan (which
require Award recipients to repay to the Firm the value of Restricted Shares, without reduction for
related withholding tax, if the Committee determines that all terms and conditions of this Award
Agreement were not satisfied) shall apply to this Award, except that if the condition that was not
satisfied would have resulted in the Transfer Restrictions not being removed, then the Fair Market
Value of the Shares shall be determined as of the Transferability Date (or any earlier date that
the Transfer Restrictions were removed).




          7. Non-Competition. In the event of the termination of your Employment (determined as
described in Section 1.2.19 of the Plan) by reason of Extended Absence or Retirement, without
limiting the application of Paragraph 5, you shall forfeit immediately all of your rights in
respect of your Restricted Shares that became Vested by reason of you being determined by the firm
to be retirement eligible as of                      (and such Shares shall be returned to GS Inc and
this Award cancelled), if prior to the original Vesting Date of your RSU Awards, you (i) form, or
acquire a 5% or greater equity ownership, voting or profit participation interest in, any
Competitive Enterprise, or (ii) associate in any capacity (including, but not limited to,
association as an officer, employee, partner, director, consultant, agent or advisor) with any
Competitive Enterprise. Notwithstanding the foregoing, unless otherwise determined by the
Committee in its discretion, this Paragraph 7 will not apply if your termination of Employment by
reason of Extended Absence or Retirement is characterized by the Firm as “involuntary” or by
“mutual agreement” other than for Cause and if you execute such a general waiver and release of
claims and an agreement to pay any associated tax liability, both as may be prescribed by the Firm
or its designee. No termination of Employment initiated by you, including any termination




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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.”




          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 of
the Transfer Restrictions and risks of forfeiture with respect to your Restricted Shares shall be
removed.




          9. Dividends. You shall be entitled to receive on a current basis any regular cash
dividend paid by GS, Inc. in respect of your Restricted Shares, or, if the Restricted Shares are
held in escrow, the escrow agreement will provide for the distribution of any dividends in respect
of your Restricted Shares.




          10. Certain Additional Terms, Conditions and Agreements.




          (a) The delivery of Shares and the removal of the Transfer Restrictions are
conditioned on your satisfaction of any applicable withholding taxes in connection with this Award
(including without limitation any dividend payment) in accordance with Section 3.2 of the Plan. To
the extent permitted by applicable law, the Firm, in its sole discretion, may require you to choose
between (i) remitting in cash (or through payroll deduction or otherwise) in connection with the
grant, vesting or delivery of this Award, or (ii) remitting in the form of proceeds from the sale
of Shares delivered to you pursuant to this Award an amount equal to all or a portion of any
Federal, State, local, foreign or other tax obligations imposed on you or the Firm. In addition, if
you are an individual with separate employment contracts (at any time during and/or after the
Firm’s             fiscal year), the Firm may, in its sole discretion, require you to choose between (i)
remitting in cash (or through payroll deduction or otherwise) for a reserve, or (ii) remitting in
the form of proceeds from the sale of Shares delivered to you pursuant to this Award (or any other
Outstanding Awards under the Plan) an amount the Firm determines is advisable or necessary in
connection with any actual, anticipated or potential tax consequences related to your separate
employment contracts. In no event, however, shall any choice you may have under the preceding two
sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or
the timing of payment of tax obligations.




          (b) If you are or become a Managing Director, your rights in respect of the
Restricted Shares 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 this Award 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, when you
accepted your RSU Awards, you expressly consented to all of the items listed in Section 3.3.3(d) of
the Plan, which are incorporated herein by reference and which continue to apply.




          (e) You understand and agree, in accordance with Section 3.22 of the Plan, when you
accepted your RSU Awards, you 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 this Award in accordance with such rules and procedures as may be adopted from time to time with
respect to sales of




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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). These policies continue to apply. In
addition, unless otherwise determined by the Firm, you understand and agree that you shall be
responsible for all costs and other fees or expenses associated with this Award, including, without
limitation, such custodial costs or other fees or expenses in connection with the sale of Shares
delivered to you hereunder.




          (f) In addition to the legend specified under Paragraph 3(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 (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.




          (g) Without limiting the application of Paragraph 5, if:





          (i) your Employment with the Firm terminates solely because you resigned to 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 Restricted Shares would result in an actual or perceived conflict of interest
(“Conflicted Employment”); or




          (ii) following your termination of Employment other than described in Paragraph
10(g)(i), you notify the Firm that you have accepted or intend to accept Conflicted
Employment at a time when you continue to hold Restricted Shares but are still subject to
the Transfer Restrictions;


then, in the cases of Paragraph 10(g)(i) and 10(g)(ii) above, all of the Transfer Restrictions and
all forfeiture provisions related to all Restricted Shares shall be removed, in each case as soon
as practicable after the Committee has received satisfactory documentation relating to your
Conflicted Employment.




          (h) You understand and agree that, in addition to and without limiting the
generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person
shall have any liability to you or any other person for any action taken or omitted in respect of
this or any other award.




          (i) You understand and agree that Restricted Shares hereby are pledged to the Firm to secure
its right to such Restricted Shares in the event you forfeit any such Restricted Shares pursuant to
the terms of the Plan or this Award Agreement. This Award, if held in escrow, will not be
delivered to you but will be held by an escrow agent for your benefit. If an escrow agent is used,
such escrow agent will also hold the Restricted Shares for the benefit of the Firm for the purpose
of perfecting its security interest.




          11. Right of Offset. The Firm may exercise its right of offset under Section 3.4 of
the Plan by conditioning the removal of the Transfer Restrictions on your satisfaction of your
obligations to the Firm in a manner deemed appropriate by the Committee, including by the
application of some or all of your Restricted Shares.




          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




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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.




          13. Arbitration; Choice of Forum. 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 in this Paragraph or as
otherwise may be provided by the Committee, and without limiting Paragraph 3(c) hereof, 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 14 or Section 3.5
of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all
recipients of Restricted Shares may transfer some or all of their Restricted Shares 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.




          15. 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.




          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:
	 	 
	 

	 	Title:
	 	 






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APPENDIX



With respect to any of your RSU Awards that you may hold which were granted in respect of the
Firm’s            and/or            fiscal years, and that now are Restricted Shares governed by this Award
Agreement, the following provisions shall replace the noted Paragraphs in this Award Agreement:





	 	1.	 	Paragraph 5(c) of this Award Agreement shall be replaced by the following:






“Unless the Committee determines otherwise, and except as provided in Paragraph 7
and 8, your rights in respect of all of your Restricted Shares immediately shall be
forfeited, such Shares immediately shall be returned to GS Inc. and this Award
immediately shall be cancelled, if, before the Transferability Date: ...




(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;”




	 	2.	 	Paragraph 5(e) of this Award Agreement shall be replaced by the following:






“Unless the Committee determines otherwise, and except as provided in Paragraph 7
and 8, your rights in respect of all of your Restricted Shares immediately shall be
forfeited, such Shares immediately shall be returned to GS Inc. and this Award
immediately shall be cancelled, if, before the Transferability Date: ...




(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 or any
shareholders’ agreement to which other similarly situated employees of the
Firm are a party;”




	 	3.	 	Paragraph 10(a) of this Award Agreement shall be replaced by the following:






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


With respect to any of your RSU Awards that you may hold which were granted in respect of the
Firm’s            fiscal year, and that now are Restricted Shares governed by this Award Agreement,
Paragraph 10(a) in this Award Agreement shall be replaced by the following:




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“The delivery of Shares is conditioned on your satisfaction of any applicable withholding
taxes in accordance with Section 3.2 of the Plan. In addition, if you are an individual with
separate employment contracts (at any time during and/or after the Firm’s            fiscal year),
the Firm may, in its sole discretion, require that you provide amounts for a reserve in
connection with which the Firm may execute a sale for such number of Shares that may be
deliverable in respect of this Award as the Firm determines is advisable or necessary in
connection with any actual, anticipated or potential tax consequences related to your
separate employment contracts.”




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