THE GOLDMAN SACHS AMENDED AND RESTATED STOCK INCENTIVE PLAN ____ DISCOUNT STOCK PROGRAM AWARD
EXHIBIT 10.30
THE XXXXXXX XXXXX AMENDED AND RESTATED
STOCK INCENTIVE PLAN
____ DISCOUNT STOCK PROGRAM AWARD
STOCK INCENTIVE PLAN
____ DISCOUNT STOCK PROGRAM AWARD
This Award Agreement sets forth the terms and conditions of the award (“DSP Award”) of RSUs
under the Discount Stock Program (“DSP RSUs”) granted to you under The Xxxxxxx Xxxxx Amended and
Restated Stock Incentive Plan (the “Plan”).
1. The Plan. This Award is made pursuant to the Plan, the terms of which are
incorporated in this Award Agreement. Capitalized terms used in this Award Agreement that are not
defined in this Award Agreement have the meanings as used or defined in the Plan. References in
this Award Agreement to any specific Plan provision shall not be construed as limiting the
applicability of any other Plan provision.
2. Award.
(a) Form of Award. The number of DSP RSUs subject to this Award is set forth in the
Award Statement delivered to you. The Award Statement shall designate your DSP RSUs as either
“Base RSUs” or “Discount RSUs.” An RSU is an unfunded and unsecured promise to deliver (or cause
to be delivered) to you, subject to the terms and conditions of this Award Agreement, a share of
Common Stock (a “Share”) on the Delivery Date or as otherwise provided herein. Until such
delivery, you have only the rights of a general unsecured creditor, and no rights as a shareholder
of GS Inc.
(b) Certain Conditions Precedent. Your DSP Award is expressly conditioned on:
(i) your being a participant in the Xxxxxxx Xxxxx Partner Compensation Plan or the Xxxxxxx
Xxxxx Restricted Partner Compensation Plan on the Date of Grant and your executing any agreement
required in connection with such participation; and (ii) your executing the related
signature card and returning it to the address designated on the signature card and/or by the
method designated on the signature card by the date specified. unless otherwise determined by the
Committee, your failure to meet these conditions will result in the cancellation of your DSP Award.
Your DSP Award is subject to all terms, conditions and provisions of the Plan and this Award
Agreement, including, without limitation, the arbitration and choice of forum provisions set forth
in Paragraph 13. By executing 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 Xxxxxxx Xxxxx Shareholders’ Agreement to which you are a party, as
amended from time to time (the “Shareholders’ Agreement”), except those Shares will not be
considered “Covered Shares” as defined in that Agreement. Shares underlying your Base RSUs will
not count toward satisfying your transfer restriction requirements under Section 2.1 of the
Shareholders’ Agreement until the Transfer Restrictions described in Paragraph 3(b)(i)(B) are
removed.
3. Vesting, Delivery and Transfer Restrictions.
(a) Vesting.
(i) Base RSUs. Except as provided in Paragraph 2(b), you shall be fully Vested in all
of your Outstanding Base RSUs on the Date of Grant, and, subject to Paragraph 10, neither such Base
RSUs, nor the Shares underlying them, shall be forfeitable for any reason.
(ii) Discount RSUs. Except as provided in this Paragraph 3 and in
Paragraphs 4, 5, 7, 8, 10, 11 and 16, on each Vesting Date you shall become Vested in the number or
percentage of your Outstanding Discount RSUs specified next to such Vesting Date on the Award
Statement (which may be rounded to avoid fractional Shares). While continued active Employment is
not required in order to receive delivery of the Shares underlying your Discount RSUs that are or
become Vested, all other terms and conditions of this Award Agreement shall continue to apply, and
failure to meet such terms and conditions may result in the termination of some or all of your
Discount RSUs (as a result of which no Shares underlying such Discount RSUs would be delivered).
(b) Delivery and Transfer Restrictions.
(i) Base RSUs.
(A) Delivery Date. The Delivery Date with respect to your Base RSUs shall be the date
specified as such on your Award Statement, if that date is during a Window Period or, if that date
is not during a Window Period, the first Trading Day of the first Window Period beginning after
such date. For purposes of this Agreement, a “Trading Day” is a day on which Shares trade regular
way on the New York Stock Exchange. Except as provided in this Paragraph 3 and Paragraphs 2, 8,
10, 11 and 16, in accordance with Section 3.23 of the Plan, reasonably promptly (but in no case
more than thirty (30) Business Days) after the date specified as the Delivery Date, Shares
underlying your Base RSUs (“Base Shares”) shall be delivered to a brokerage or custody account
approved by the Firm.
(B) Transfer Restrictions on Base Shares. Except as provided in Paragraphs 3(c),
4(a), 8, or 10, until the date specified on your Award Statement as the “Transferability Date:”
(I) your Base Shares shall not be permitted to be sold, exchanged, transferred, assigned, pledged,
hypothecated, fractionalized, hedged or otherwise disposed of (including through the use of any
cash-settled instrument), whether voluntarily or involuntarily by you (collectively referred to as
the “Transfer Restrictions”) and any purported sale, exchange, transfer, assignment, pledge,
hypothecation, fractionalization, hedge or other disposition in violation of the Transfer
Restrictions shall be void; and (II) if and to the extent your Base Shares are certificated, the
certificates representing your Base Shares are subject to the restrictions in this Paragraph
3(b)(i)(B) and GS Inc. shall advise its transfer agent to place a stop order against your Base
Shares. Within 30 Business Days after the Transferability Date (or any other date described herein
the Transfer Restrictions are removed), GS Inc. shall take, or shall cause to be taken, such steps
as may be necessary to remove the Transfer Restrictions.
(ii) Discount RSUs. The Delivery Date with respect to your Outstanding Vested
Discount RSUs shall be the date specified as such on your Award Statement, if that date is during a
Window Period or, if that date is not during a Window Period, the first Trading Day of the first
Window Period beginning after such date. Except as provided in this Paragraph 3 and in Paragraphs
2, 4(b), 5, 6, 7, 8, 10, 11 and 16, in accordance with Section 3.23 of the Plan, reasonably
promptly (but in no case more than thirty (30) Business Days) after any date specified as the
Delivery Date (or any other date delivery of Shares is called for hereunder), Shares underlying the
number or percentage of your then Outstanding Discount RSUs with respect to which the Delivery Date
(or other date) has occurred (which number of Shares may be rounded to avoid fractional shares)
shall be delivered to a brokerage or custody account approved by the Firm.
(iii) Certain “Covered Employees.” Notwithstanding the foregoing, if you are or
become considered by GS Inc. to be one of its “covered employees” within the meaning of Section
162(m) of the Code, then you shall be subject to Section 3.21.3 of the Plan, as a result of which
delivery of your Shares may be delayed.
(iv) Right to Deliver Cash or Other Property. In accordance with Section 1.3.2(i) of
the Plan, in the discretion of the Committee, in lieu of all or any portion of the Shares otherwise
deliverable in respect of all or any portion of your DSP RSUs, the Firm may deliver cash, other
securities, other Awards or other property,
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and all references in this Award Agreement to deliveries of Shares shall include such deliveries
of cash, other securities, other Awards or other property.
(v) Escrow. Pending receipt of any consents deemed necessary or appropriate by the
Firm, Shares in respect of your DSP Award initially may be delivered into an escrow account meeting
such terms and conditions as determined by the Firm. Any such escrow arrangement shall, unless
otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive
authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in
escrow may be accumulated and shall be paid as determined by GS Inc. in its discretion. By
accepting your DSP Award, you have agreed to execute such documents and take such steps as may be
deemed necessary or appropriate by the Firm to establish and maintain any such escrow account.
(c) Death. Notwithstanding any other Paragraph of this Award Agreement, if you die
prior to the Delivery Date with respect to your DSP RSUs and/or the Transferability Date with
respect to your Base Shares, as soon as practicable after the date of death and after such
documentation as may be requested by the Committee is provided to the Committee: (i) your Base
Shares and the Shares underlying all of your then Outstanding DSP RSUs shall be delivered to the
representative of your estate; and (ii) the Transfer Restrictions then applicable to your Base
Shares shall be removed. The Committee may adopt procedures pursuant to which you may be permitted
to specifically bequeath some or all of your Outstanding DSP 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.
Termination of Employment
(a) Base Shares. Unless the Committee determines otherwise, if your Employment
terminates for any reason or you otherwise are no longer actively employed with the Firm (other
than by reason of Extended Absence or solely as a result of “downsizing” as provided in Paragraph
7(b)), the Transfer Restrictions will be removed as soon as practicable after the date your
Employment so terminates. If your Employment terminates by reason of Extended Absence or solely by
reason of a “downsizing” as provided in Paragraph 7(b), the Transfer Restrictions shall continue to
apply to your Base Shares until the Transferability Date in accordance with Paragraph 3(b)(i)(B)
hereof.
(b) Discount RSUs. Unless the Committee determines otherwise, except as provided in
Paragraphs 3(c), 7, 8 and 10(g), if your Employment terminates for any reason or you otherwise are
no longer actively employed with the Firm, your rights in respect of your Discount RSUs (but not
your Base RSUs) that were Outstanding, but that had not yet become Vested, immediately prior to
your termination of Employment immediately shall terminate, such Discount RSUs shall cease to be
Outstanding, and no Shares shall be delivered in respect thereof.
5. Termination of Discount RSUs and Non-Delivery of Shares. Unless the Committee
determines otherwise, and except as provided in Paragraphs 7 and 8, your rights in respect of all
of your Outstanding Discount RSUs (whether or not Vested), immediately shall terminate, such
Discount RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect thereof
if:
(a) you attempt to have any dispute under the Plan or this Award Agreement resolved in any
manner that is not provided for by Paragraph 13 or Section 3.17 of the Plan;
(b) any event that constitutes Cause has occurred;
(c) (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
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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 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. By accepting the
delivery of Shares under this Award Agreement, you shall be deemed to have represented and
certified at such time that you have complied with all the terms and conditions of the Plan and
this Award Agreement;
(e) the Committee determines that you failed to meet, in any respect, any obligation you may
have under any agreement between you and the Firm, or any agreement entered into in connection with
your Employment with the Firm, including, without limitation, the Firm’s notice period requirement
applicable to you, any offer letter, employment agreement, the Shareholders’ Agreement, or any
other shareholders’ agreement to which other similarly situated employees of the Firm are a party;
or
(f) as a result of any action brought by you, it is determined that any of the terms or
conditions of this Award Agreement are invalid.
For purposes of the foregoing, the term “Selected Firm Personnel” means: (i) any Firm employee or
consultant (A) with whom you personally worked while employed by the Firm, or (B) who at any time
during the year immediately preceding your termination of Employment with the Firm, worked in the
same division in which you worked; and (ii) any Managing Director of the Firm.
6. Repayment. The provisions of Section 2.6.3 of the Plan (which requires Award
recipients to repay to the Firm amounts delivered to them if the Committee determines that all
terms and conditions of this Award Agreement in respect of such delivery were not satisfied) shall
apply to your Discount RSUs, but not your Base RSUs or Base Shares.
7. Extended Absence and Downsizing.
(a) Extended Absence.
(i) Notwithstanding any other provision of this Award Agreement, but subject to Paragraph
7(a)(ii), solely with respect to any Discount RSUs that were Outstanding but that had not yet
become Vested prior to your termination of Employment by reason of Extended Absence, the condition
set forth in Paragraph 4(b) shall be waived with respect to any such Discount RSUs (as a result of
which such Discount RSUs shall become Vested), but all other terms and conditions of this Award
Agreement shall continue to apply. Any termination of Employment by reason of Extended Absence
shall not affect your Base RSUs or Base Shares, and the Transfer Restrictions shall continue to
apply until the Transferability Date as provided in Paragraph 3(b)(i)(B).
(ii) Without limiting the application of Paragraph 4(b), your rights in respect of your
Outstanding Discount RSUs that become Vested in accordance with Paragraph 7(a)(i) immediately shall
terminate, such Outstanding Discount RSUs shall cease to be Outstanding, and no Shares shall be
delivered in respect thereof
if, prior to the original Vesting Date with respect to such Discount RSUs, you (i) form, or
acquire a 5% or greater equity ownership, voting or profit participation interest in, any
Competitive Enterprise, or
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(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.
(b) Downsizing.
(i) Notwithstanding any other provision of this Award Agreement and subject to your executing
such general waiver and release of claims and an agreement to pay any associated tax liability,
both as may be prescribed by the Firm or its designee, if your Employment is terminated solely by
reason of a “downsizing,” the condition set forth in Paragraph 4(b) shall be waived with respect to
a portion of your Discount RSUs that were Outstanding but that had not yet become Vested prior to
your termination of Employment by reason of “downsizing,” as a result of which you shall become
Vested in a portion of such Discount RSUs, determined with respect to each remaining Vesting Date
by multiplying the number of Discount RSUs that would become Vested on each remaining Vesting Date
by a fraction, the numerator of which is the number of months from the Date of Grant to the date
your Employment terminated and the denominator of which is the number of months from the Date of
Grant to the applicable Vesting Date, but all other terms and conditions of this Award Agreement
shall continue to apply. Your termination of Employment by reason of “downsizing” shall not affect
your Base Shares, and the Transfer Restrictions shall continue to apply until the Transferability
Date as provided in Paragraph 3(b)(i)(B).
(ii) Whether or not your Employment is terminated solely by reason of a “downsizing” shall
be determined by the Firm in its sole discretion. No termination of Employment initiated by you,
including any termination claimed to be a “constructive termination” or the like or a termination
for good reason, will be solely by reason of a “downsizing.”
8. Change in Control. Notwithstanding anything to the contrary in this Award
Agreement, in the event a Change in Control shall occur and within 18 months thereafter the Firm
terminates your Employment without Cause or you terminate your Employment for Good Reason, all
Shares underlying your then Outstanding DSP RSUs, whether or not Vested, shall be delivered, and
the Transfer Restrictions with respect to your Base Shares shall be removed.
9. Dividend Equivalent Rights. Each of your DSP RSUs shall include a Dividend
Equivalent Right. Accordingly, with respect to each of your Outstanding DSP RSUs, at or after the
time of distribution of any regular cash dividend paid by GS Inc. in respect of a Share the record
date for which occurs on or after the Date of Grant, you shall be entitled to receive an amount
(less applicable withholding) equal to such regular dividend payment as would have been made in
respect of the Share underlying such Outstanding DSP RSU. Payment in respect of a Dividend
Equivalent Right shall be made only with respect to DSP RSUs that are Outstanding on the payment
date. Each Dividend Equivalent Right shall be subject to the provisions of Section 2.8.2 of the
Plan.
10. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares in respect of your DSP RSUs is conditioned on your satisfaction of
any applicable withholding taxes in accordance with Section 3.2 of the Plan. 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 your Discount RSUs (or any other Outstanding Awards under the Plan) as
the Firm determines is advisable or necessary in connection with any actual, anticipated or
potential tax consequences related to your separate employment contracts.
(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.
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(c) Your rights in respect of your DSP 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, 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.
(e) You understand and agree, in accordance with Section 3.22 of the Plan, by accepting this
Award you have agreed to be subject to the Firm’s policies in effect from time to time concerning
trading in Shares and hedging or pledging Shares and equity-based compensation or other awards
(including, without limitation, the Firm’s “Policies With Respect to Transactions Involving GS
Shares, Equity Awards and GS Options by Persons Affiliated with GS Inc.”), and confidential or
proprietary information, and to effect sales of Shares delivered to you in respect of your DSP RSUs
in accordance with such rules and procedures as may be adopted from time to time with respect to
sales of such Shares (which may include, without limitation, restrictions relating to the timing of
sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation
of orders and volume limits determined by the Firm). In addition, you understand and agree that
you shall be responsible for all brokerage costs and other fees or expenses associated with your
Award, including, without limitation, such brokerage costs or other fees or expenses in connection
with the sale of Shares delivered to you hereunder in respect of your DSP RSUs.
(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award
Agreement any legend that the Committee determines to be necessary or advisable (including to
reflect any restrictions to which you may be subject under this Award Agreement or under any
separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order
against any legended Xxxxxx.
(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 Outstanding Base RSUs, Discount RSUs or
Base 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 Outstanding Base RSUs, Discount RSUs or Base Shares that are Vested;
then, in the case of Paragraph 10(g)(i) above only, the conditions set forth in Paragraph 4(b)
shall be waived with respect to any Discount RSUs you then hold that had not yet become Vested (as
a result of which such Discount RSUs shall become Vested) and in the case of Paragraphs 10(g)(i)
and 10(g)(ii) above, the Transfer Restrictions shall be removed with respect to any then delivered
Base Shares, all Base RSUs and then Outstanding Vested Discount RSUs pursuant to which Shares had
not yet been delivered shall be cancelled, and, at the sole discretion of the Firm, you shall
receive either a lump sum cash payment in respect of, or delivery of Shares underlying, any such
cancelled Base RSUs and Vested Discount RSUs, in each case as soon as practicable after the
Committee has received satisfactory documentation relating to your Conflicted Employment.
Notwithstanding anything else herein, payment or delivery in respect of the DSP RSUs as a result of
this Paragraph 10(g) 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).
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11. Right of Offset. The obligation to deliver Shares under this Award Agreement or
to remove the Transfer Restrictions is subject to Section 3.4 of the Plan, which provides for the
Firm’s right to offset against such obligation any outstanding amounts you owe to the Firm and any
amounts the Committee deems appropriate pursuant to any tax equalization policy or agreement.
12. Amendment. The Committee reserves the right at any time to amend the terms and
conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect;
provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan,
no such amendment shall materially adversely affect your rights and obligations under this Award
Agreement without your consent; and provided further that the Committee expressly reserves its
rights to amend this Award Agreement and the Plan as described in Sections 1.3.2(h)(1), (2) and (4)
of the Plan. Any amendment of this Award Agreement shall be in writing signed by an authorized
member of the Committee or a person or persons designated by the Committee.
13. Arbitration; Choice of Forum. BY ACCEPTING THIS DSP AWARD, YOU UNDERSTAND AND
AGREE THAT THE ARBITRATION AND CHOICE OF FORUM PROVISIONS SET FORTH IN SECTION 3.17 OF THE PLAN,
WHICH ARE EXPRESSLY INCORPORATED HEREIN BY REFERENCE AND WHICH, AMONG OTHER THINGS, PROVIDE THAT
ANY DISPUTE, CONTROVERSY OR CLAIM BETWEEN THE FIRM AND YOU ARISING OUT OF OR RELATING TO OR
CONCERNING THE PLAN OR THIS AWARD AGREEMENT SHALL BE FINALLY SETTLED BY ARBITRATION IN NEW YORK
CITY, PURSUANT TO THE TERMS MORE FULLY SET FORTH IN SECTION 3.17 OF THE PLAN, SHALL APPLY.
14. Non-transferability. Except as otherwise may be provided in this Paragraph 14 or
as otherwise may be provided by the Committee, and subject to Paragraph 3 hereof, the limitations
on transferability set forth in Section 3.5 of the Plan shall apply to this DSP Award. Any
purported transfer or assignment in violation of the provisions of this Paragraph 14 or Section 3.5
of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all
recipients of DSP Awards may transfer some or all of their DSP Awards 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. YOUR DSP RSU AWARD SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
16. Delay in Payment. To the extent required in order to avoid the imposition of any
interest and additional tax under Section 409A(a)(1)(B) of the Code, any payments or deliveries due
as a result of your termination of Employment with the Firm will be delayed for six months if you
are deemed to be a “specified employee” as defined in Section 409A(a)(2)(i)(B) of the Code.
17. 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.
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IN WITNESS WHEREOF, GS Inc. has caused this Award Agreement to be duly executed and delivered
as of the Date of Xxxxx.
| THE XXXXXXX XXXXX GROUP, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: |
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