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EXHIBIT 10.23
THE XXXXXXX XXXXX 1999 STOCK INCENTIVE PLAN
1999 DISCRETIONARY RSU AWARD
This Award Agreement sets forth the terms and conditions of an
Award of restricted stock units ("RSUs") granted to you under The Xxxxxxx Xxxxx
1999 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 which are not defined in this Award Agreement, or
in the attached Glossary of Terms, have the meanings as used or defined in the
Plan.
2. Award. The number of RSUs subject to this Award is
set forth in a statement separately delivered to you. An 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, a share of Common Stock
(the "Share") (or cash equal to the Fair Market Value thereof) on a Vesting 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,
INCLUDING, WITHOUT LIMITATION, THE ARBITRATION AND CHOICE OF FORUM PROVISIONS
SET FORTH IN PARAGRAPH 16. BY OPENING THE CUSTODY ACCOUNT REFERRED TO IN
PARAGRAPH 3(a), YOU WILL HAVE CONFIRMED YOUR ACCEPTANCE OF THE TERMS AND
CONDITIONS OF THIS AWARD AGREEMENT.
3. Vesting and Delivery.
(a) In General. Except as provided below in this Paragraph 3
and in Paragraphs 4, 6, 7, 10 and 11, you shall vest in the RSUs and Shares
shall be delivered in equal installments (subject to rounding in the discretion
of the Committee to avoid the delivery of fractional Shares) on each Vesting
Date. The Firm may deliver cash in lieu of all or any portion of the Shares
otherwise deliverable on each such Vesting 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 a custody account (the "Custody
Account") maintained by you with The Chase Manhattan Bank or such successor
custodian as may be designated by GS Inc. No delivery of Shares shall be made
unless you have timely established the Custody Account. You shall be the
beneficial owner of any Shares properly credited to the Custody Account. 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 is properly credited with such Shares. Notwithstanding the
foregoing, if a Vesting Date occurs at a time when you are considered by GS Inc.
to be one of its "covered employees" within the meaning of Section 162(m) of the
Code, then, unless the Committee determines otherwise, delivery of Shares (or
cash) in respect of such Vesting Date shall automatically be deferred until the
first day of the first Window Period after you have ceased to be such a covered
employee.
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(b) Death. Notwithstanding any other provision of this Award
Agreement, if you die prior to the last Vesting Date, and provided your rights
in respect of any outstanding RSUs have not previously terminated, the Shares
(or cash in lieu of all or any portion thereof) corresponding to your
outstanding RSUs shall be delivered as soon as practicable thereafter to your
designated beneficiary (or, if none, your estate).
4. Termination of RSUs and Non-Delivery of Shares.
(a) Unless the Committee determines otherwise, and except as
provided in Paragraphs 6 and 7, your rights in respect of any outstanding RSUs
shall immediately terminate and no Shares (or cash) shall be delivered in
respect of such RSUs, if:
(i) at any time prior to the relevant Vesting Date:
(A) your Employment with the Firm is terminated for any
reason, or you are otherwise no longer actively employed with the Firm
(except as provided in Paragraphs 3(b) or 6); or
(B) any of the events that constitute Cause has occurred; or
(C) you attempt to have any dispute under this Award Agreement
resolved in any manner that is not provided for by Paragraph 16; or
(ii) you fail to certify to GS Inc., in accordance with
procedures established by the Committee, with respect to each relevant
Vesting Date that you have complied, or the Committee determines that
you in fact have failed as of the relevant Vesting Date to comply, with
all the terms and conditions of this Award Agreement. By accepting the
delivery of Shares (or cash) 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 this Award Agreement.
(b) Unless the Committee determines otherwise, if the Vesting
Date in respect of any outstanding RSUs occurs, and Shares (or cash) with
respect to such RSUs would be deliverable under the terms and conditions of this
Award Agreement, except that you have not complied with the conditions or your
obligations under Paragraphs 3(a) and 4(a)(ii), all of your rights with respect
to such RSUs shall terminate, and no Shares (or cash) shall be delivered, upon
the expiration of the fiscal year of GS Inc. in which such Vesting Date occurs.
5. Repayment. If, following the delivery of Shares (or
cash) with respect to any Vesting Date, the Committee determines that all terms
and conditions of this Award Agreement in respect of such delivery were not
satisfied, the Firm shall be entitled to receive, and you shall be obligated to
pay the Firm immediately upon demand therefor, the Fair Market Value of the
Shares (determined as of the relevant Vesting Date) and the amount of cash (to
the extent that cash was delivered in lieu of Shares) that were delivered with
respect to such Vesting
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Date and without reduction for any Shares (or cash delivered in lieu of all or
any portion thereof) applied to satisfy withholding tax or other obligations in
respect of such Shares (or cash).
6. Extended Absence and Retirement.
(a) Notwithstanding any other provision of this Award
Agreement, if your Employment with the Firm is terminated by reason of Extended
Absence or Retirement, and provided your rights with respect to any outstanding
RSUs have not previously terminated, the condition set forth in Paragraph
4(a)(i)(A) shall be waived but all other conditions of this Award Agreement
shall continue to apply.
(b) Without limiting the application of Paragraphs 4(a)(i)(B)
and (C), Paragraph 4(a)(ii) and Paragraph 4(b), unless the Committee determines
otherwise, your rights in respect of any outstanding RSUs shall immediately
terminate and no Shares (or cash) shall be delivered in respect of such RSUs if,
following the termination of your Employment with the Firm by reason of Extended
Absence or Retirement:
(i) you (A) form, or acquire a 5% or greater equity ownership,
voting or profit participation interest in, any Competitive Enterprise,
or (B) associate (including, but not limited to, association as an
officer, employee, partner, director, consultant, agent or advisor)
with any Competitive Enterprise and in connection with such association
engage in, or directly or indirectly manage or supervise personnel
engaged in, any activity (1) which is similar or substantially related
to any activity in which you were engaged, in whole or in part, at the
Firm, (2) for which you had direct or indirect managerial or
supervisory responsibility at the Firm or (3) which calls for the
application of the same or similar specialized knowledge or skills as
those utilized by you in your activities with the Firm, at any time
during the one-year period immediately prior to termination of your
Employment (or, in the case of an action taken prior to termination of
your Employment, during the one-year period immediately prior to such
action), and, in any such case, irrespective of the purpose of the
activity or whether the activity is or was in furtherance of advisory,
agency, proprietary or fiduciary business of either the Firm or the
Competitive Enterprise. (By way of example only, this provision would
preclude an "advisory" investment banker from joining a
leveraged-buyout firm, a research analyst from becoming a proprietary
trader or joining a hedge fund, or an information systems professional
from joining a management or other consulting firm and providing
information technology consulting services or advice to any Competitive
Enterprise.); or
(ii) 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 or (B)
interfere with or damage (or attempt to interfere with or damage) any
relationship between the Firm and any such Client or (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.
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7. Change in Control. Notwithstanding anything to the
contrary in this Award Agreement, in the event a Change in Control shall occur
and within 18 months thereafter the Firm terminates your Employment without
Cause or you terminate Employment with the Firm for Good Reason, any outstanding
RSUs with respect to which your rights have not terminated shall vest and all
Shares (or the Fair Market Value thereof in cash) shall be delivered.
8. Dividend Equivalents. Prior to the delivery of Shares
(or cash 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 (less
applicable withholding) 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; provided, that no payment in respect of RSUs shall be
made if, prior to the time such payment is due, your rights with respect to such
RSUs have previously terminated under this Agreement.
9. Non-transferability; Beneficiary Designation. Except
as may otherwise be provided by the Committee, the limitations set forth in
Section 3.4 of the Plan shall apply. Any assignment in violation of the
provisions of this Paragraph 9 shall be void. You may designate, in accordance
with procedures established by the Committee, a beneficiary or beneficiaries to
receive all or part of the amounts to be paid under this Award Agreement in the
event of your death. A designation of a beneficiary may be replaced by a new
designation or may be revoked by you at any time in accordance with procedures
established by the Committee. If you die without having properly designated a
beneficiary, any amounts payable upon your death shall be distributed to your
estate. If there is any question as to the legal right of any beneficiary to
receive payment of amounts under this Award Agreement, the amounts in question
may be paid to your estate, in which event the Firm shall have no further
liability to anyone with respect to such amounts. A beneficiary or estate shall
have no rights under this Award Agreement other than the right, subject to the
immediately preceding sentence, to receive such amounts, if any, as may be
payable under this Paragraph 9.
10. 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 (including, without limitation, your consenting (i) to
the Firm's supplying to any third party recordkeeper of the Plan such personal
information as the Committee deems advisable to administer the Plan and (ii) to
deductions from your wages, or other arrangements satisfactory to the Committee,
to reimburse
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the Firm for advances made on your behalf to satisfy certain withholding and
other tax obligations in connection with this Award).
(c) If you are or become a Managing Director, your rights in
respect of the RSUs are conditioned on your becoming a party to any
shareholders' agreement to which other similarly situated employees of the Firm
are a party.
(d) 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 Xxxxxx.
11. Right of Offset. GS Inc. (and any of its affiliates
or subsidiaries) shall have the right to offset against the obligation to
deliver Shares (or cash) under this Award Agreement 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) you then owe to the Firm and any
amounts the Committee otherwise deems appropriate pursuant to any tax
equalization policy or agreement.
12. No Rights to Continued Employment. Nothing in this
Award Agreement or the Plan shall be construed as giving you any right to
continued Employment by the Firm or affect any right which the Firm may have to
terminate or alter the terms and conditions of your Employment.
13. 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.
14. Committee Discretion. The Committee shall have full
discretion with respect to any actions to be taken or determinations to be made
in connection with this Award Agreement, and its determinations shall be final,
binding and conclusive.
15. 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 Section 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 beneficiary or
estate, if such consent is obtained after your death), except that the Committee
reserves the right to accelerate the vesting and delivery of the Shares and in
its discretion provide that such Shares may not be transferable until the
relevant Vesting Dates (and that in respect of such Shares you may remain
subject to the repayment obligations of Paragraph 5 in the circumstances under
which the Shares would not have been delivered pursuant to Section 4 or 6).
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Any amendment of this Award Agreement shall be in writing signed by the Chief
Executive Officer of GS Inc. or his or her designee.
16. Arbitration; Choice of Forum. (a) 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 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, the American Arbitration Association (the
"AAA") in accordance with the commercial arbitration rules of the AAA. Prior to
arbitration, all claims maintained by you must first be submitted to the
Committee in accordance with claims procedures determined by the Committee. This
paragraph is subject to the provisions of clauses (b) and (c) below.
(b) THE FIRM AND YOU HEREBY 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 OR THIS AWARD AGREEMENT THAT IS NOT OTHERWISE ARBITRATED OR
RESOLVED ACCORDING TO PARAGRAPH 16(a) OF THIS AWARD AGREEMENT. This includes
any suit, action or proceeding to compel arbitration or to enforce an
arbitration award. The Firm and you acknowledge that the forum designated by
this Paragraph 16(b) has a reasonable relation to the Plan, this Award
Agreement, and to your 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 Paragraph 16.
(c) The agreement by you and the Firm as to forum is
independent of the law that may be applied in the action, and you and the Firm
agree to such forum even if the forum may under applicable law choose to apply
non-forum law. You and the Firm hereby waive, to the fullest extent permitted by
applicable law, any objection which you 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 16(b). You and the Firm
undertake not to commence any action arising out of or relating to or concerning
this Award Agreement in any forum other than a forum described in this Paragraph
16. You and the Firm agree that, to the fullest extent permitted by applicable
law, a final and non-appealable judgment in any such suit, action or proceeding
in any such court shall be conclusive and binding upon you and the Firm.
(d) You irrevocably appoint the General Counsel of GS Inc. as
your agent for service of process in connection with any action or proceeding
arising out of or relating to or concerning this Award Agreement which is not
arbitrated pursuant to the provisions of Paragraph 16(a), who shall promptly
advise you of any such service of process.
(e) You hereby agree to keep confidential the existence of,
and any information concerning, a dispute described in this Paragraph 16, except
that you may disclose information concerning such dispute to the arbitrator or
court that is considering such dispute or
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to your 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).
(f) You recognize and agree that prior to the grant of this
Award you have no right to any benefits hereunder. Accordingly, in consideration
of the receipt of this Award, you expressly waive any right to contest the
amount of this Award, terms of this Award Agreement, any determination, action
or omission hereunder or under the Plan by the Committee, GS Inc. or the Board,
or any amendment to the Plan or this Award Agreement (other than an amendment to
which your consent is expressly required by Paragraph 15).
17. 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.
18. 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 _____, 1999.
THE XXXXXXX XXXXX GROUP, INC.
By: ____________________________
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GLOSSARY OF TERMS
Solely for purposes of the 1999 Discretionary RSU Award Agreement and
the 1999 Discretionary Option Award Agreement, granted under the
Xxxxxxx Xxxxx 1999 Stock Incentive Plan (the "Plan"), the following
terms shall have the meanings set forth below. Capitalized terms not
defined in this Glossary of Terms shall have the meanings as used or
defined in the applicable Award
Agreement or the Plan.
"CAUSE" means (i) your conviction, whether following trial or
by plea of guilty or nolo contendere (or similar plea), in a criminal
proceeding (A) on a misdemeanor charge involving fraud, false
statements or misleading omissions, wrongful taking, embezzlement,
bribery, forgery, counterfeiting or extortion, or (B) on a felony
charge or (C) on an equivalent charge to those in clauses (A) and (B)
in jurisdictions which do not use those designations; (ii) your
engaging in any conduct which constitutes an employment
disqualification under applicable law (including statutory
disqualification as defined under the Exchange Act); (iii) your willful
or grossly negligent failure to perform your duties to the Firm; (iv)
your violation of any securities or commodities laws, any rules or
regulations issued pursuant to such laws, or the rules and regulations
of any securities or commodities exchange or association of which GS
Inc. or any of its subsidiaries or affiliates is a member; (v) your
violation of any Firm policy concerning hedging or confidential or
proprietary information, or your material violation of any other Firm
policy as in effect from time to time; (vi) your engaging in any act or
making any statement which impairs, impugns, denigrates, disparages or
negatively reflects upon the name, reputation or business interests of
the Firm; or (vii) your engaging in any conduct detrimental to the
Firm. The determination as to whether "Cause" has occurred shall be
made by the Committee in its sole discretion. The Committee shall also
have the authority in its sole discretion to waive the consequences
under the Plan or any Award Agreement of the existence or occurrence of
any of the events, acts or omissions constituting "Cause".
"CHANGE IN CONTROL" means the consummation of a merger,
consolidation, statutory share exchange or similar form of corporate
transaction involving GS Inc. (a "Reorganization") or sale or other
disposition of all or substantially all of GS Inc.'s assets to an
entity that is not an affiliate of GS Inc. (a "Sale"), that in each
case requires the approval of GS Inc.'s stockholders under the law of
GS Inc.'s jurisdiction of organization, whether for such Reorganization
or Sale (or the issuance of securities of GS Inc. in such
Reorganization or Sale), unless immediately following such
Reorganization or Sale, either: (i) at least 50% of the total voting
power (in respect of the election of directors, or similar officials in
the case of an entity other than a corporation) of (A) the entity
resulting from such Reorganization, or the entity which has acquired
all or substantially all of the assets of GS Inc. in a Sale (in either
case, the "Surviving Entity"), or (B) if applicable, the ultimate
parent entity that directly or
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indirectly has beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act, as such Rule is in effect on the date of the
adoption of the Plan) of 50% or more of the total voting power (in
respect of the election of directors, or similar officials in the case
of an entity other than a corporation) of the Surviving Entity (the
"Parent Entity"), is represented by GS Inc.'s securities (the "GS Inc.
Securities") that were outstanding immediately prior to such
Reorganization or Sale (or, if applicable, is represented by shares
into which such GS Inc. Securities were converted pursuant to such
Reorganization or Sale) or (ii) at least 50% of the members of the
board of directors (or similar officials in the case of an entity other
than a corporation) of the Parent Entity (or, if there is no Parent
Entity, the Surviving Entity) following the consummation of the
Reorganization or Sale were, at the time of the Board's approval of the
execution of the initial agreement providing for such Reorganization or
Sale, individuals (the "Incumbent Directors") who either (1) were
members of the Board on the date of the Award or (2) became directors
subsequent to the date of the Award and whose election or nomination
for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of GS Inc.'s proxy statement in which such persons are named
as a nominee for director).
"CLIENT" means any client or prospective client of the Firm to
whom you provided services, or for whom you transacted business, or
whose identity became known to you in connection with your relationship
with or employment by the Firm.
"COMPETITIVE ENTERPRISE" means a business enterprise that (i)
engages in any activity, or (ii) owns or controls a significant
interest in any entity that engages in any activity, that, in either
case, competes anywhere with any activity in which the Firm is engaged.
The activities covered by the previous sentence include, without
limitation, financial services such as investment banking, public or
private finance, lending, financial advisory services, private
investing (for anyone other than you and members of your family),
merchant banking, asset or hedge fund management, insurance or
reinsurance underwriting or brokerage, property management, or
securities, futures, commodities, energy, derivatives or currency
brokerage, sales, lending, custody, clearance, settlement or trading.
"EXTENDED ABSENCE" means you are unable to perform for six
continuous months, due to illness, injury or pregnancy-related
complications, substantially all the essential duties of your
occupation, as determined by the Committee.
"GOOD REASON" means (i) as determined by the Committee, a
materially adverse alteration in the your position or in the nature or
status of your responsibilities from those in effect immediately prior
to the Change in Control, or (ii) the Firm's requiring your principal
place of Employment to be located more than seventy-five (75) miles
from the location where you are principally Employed at the time of the
Change in Control (except for required travel on the Firm's business to
an extent substantially
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consistent with your customary business travel obligations in the
ordinary course of business prior to the Change in Control).
"RETIREMENT" means termination of your Employment on or after
the date on which (i) you have attained age 55 with 5 years of service
with the Firm, or (ii) the sum of (I) your age and (II) 1.5 times your
years of service with the Firm, is equal to or greater than 80.
"SOLICIT" means any direct or indirect communication of any
kind whatsoever, regardless of by whom initiated, inviting, advising,
encouraging or requesting any person or entity, in any manner, to take
or refrain from taking any action.
"VESTING DATE" means the first day of each Window Period that
begins on or immediately follows each of the third, fourth and fifth
anniversaries of the consummation of the initial public offering of
Shares.
"WINDOW PERIOD" means a period designated by the Committee
during which employees of the Firm generally are permitted to purchase
or sell Shares.
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