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 DSP 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. THIS 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. THIS 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 12. 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
DSP 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.
3. Vesting and Delivery.
(a) Vesting.
(i) Base RSUs. Except as provided in Paragraph 2(b), you shall be fully Vested in all
of the Outstanding Base RSUs on the Date of Grant, and, subject to Paragraph 9, 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 2, 4, 6,
7, 9, 10 and 15, on each Vesting Date you shall become Vested in the number or percentage of the
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 Outstanding 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 the Discount RSUs (as a result of which
no Shares underlying your Discount RSUs would be delivered).
(b) Delivery.
(i) The Delivery Date with respect to all of your DSP 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 that date. For
this purpose, a “Trading Day” is a day on which Shares trade regular way on the New York Stock
Exchange.
(ii) Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 5, 6, 7, 9, 10 and 15, 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 (or any other date delivery of Shares
is called for hereunder), Shares underlying the number or percentage of your then Outstanding DSP
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 by book entry credit to your Custody
Account or to a brokerage account as approved or required by the Firm. 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.
(iii) 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, and all
references in this Award Agreement to deliveries of Shares shall include such deliveries of cash,
other securities, other Awards or other property.
(iv) 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, the Shares underlying all of your then Outstanding DSP 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 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 Discount RSUs and Non-Delivery of Shares.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 3(c), 6, 7
and 9(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
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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.
(b) Unless the Committee determines otherwise, and except as provided in Paragraphs 6 and 7,
your rights in respect of all of your Outstanding Discount RSUs (whether or not Vested) (but not
your Base RSUs), immediately shall terminate, such Discount RSUs shall cease to be Outstanding and
no Shares shall be delivered in respect thereof if:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any
manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
(ii) any event that constitutes Cause has occurred;
(iii) (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 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;
(iv) 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;
(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, 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
(vi) as a result of any action brought by you, it is determined that any of the terms or
conditions for delivery of Shares in respect 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.
5. 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, subject to Paragraph 2(b), not your Base RSUs.
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6. Extended Absence and Downsizing.
(a) Notwithstanding any other provision of this Award Agreement, but subject to Paragraph
6(b), 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, the condition set forth in Paragraph 4(a) shall be
waived with respect to any Discount RSUs that were Outstanding but that had not yet become Vested
immediately prior to such termination of Employment (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.
(b) Without limiting the application of Paragraph 4(b), your rights in respect of your
Outstanding Discount RSUs that become Vested in accordance with Paragraph 6(a) 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 (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.
(c) 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 without
Cause solely by reason of a “downsizing,” the condition set forth in Paragraph 4(a) shall be waived
with respect to a portion of your Discount RSUs that were Outstanding but that had not yet become
Vested immediately prior to such 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. 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.”
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 your Employment for Good Reason, all
Shares underlying your then Outstanding DSP RSUs, whether or not Vested, shall be delivered.
8. Dividend Equivalent Rights. Each DSP RSU 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 relevant record date.
Each Dividend Equivalent Right shall be subject to the provisions of Section 2.8.2 of the Plan.
9. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding
taxes 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 provide amounts equal to all or a portion of any
Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection
with the grant, vesting or delivery of this DSP Award by requiring you to choose between remitting such amount (i) in
cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firm’s
executing a sale of Shares delivered to you pursuant to this DSP Award. 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
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you to provide for a reserve in 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 by requiring you to choose
between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in
the form of proceeds from the Firm’s executing a sale of Shares delivered to you pursuant to this
DSP Award (or any other Outstanding Awards under the Plan). 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) 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.
(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
DSP 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 this DSP Award, including, without limitation, such brokerage costs or other fees or expenses
in connection with the sale of Shares delivered to you hereunder.
(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 a 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 4(b), 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 Discount RSUs or Base RSUs
would result in an actual or perceived conflict of interest (“Conflicted Employment”); or
(ii) following your termination of Employment other than described in Paragraph 9(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 Discount RSUs or any Base RSUs;
then, in the case of Paragraph 9(g)(i) above only, the condition set forth in Paragraph 4(a) 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 9(g)(i) and
9(g)(ii) above, at the sole discretion of the Firm, you shall receive either a lump sum cash
payment in respect of, or delivery of Shares underlying, all then
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Outstanding Vested Discount RSUs
(including those that become Vested in connection with Paragraph 9(g)(i) by reason of the
immediately foregoing clause) and Base 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 9(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).
10. Right of Offset. The obligation to deliver Shares under this Award Agreement 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.
11. 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.
12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or
as otherwise may be provided by the Committee, 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 13 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.
14. Governing Law. THIS DSP 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.
15. Delay in Payment. To the extent required in order to avoid the imposition of any
interest and/or 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 may 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.
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.
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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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