THE GOLDMAN SACHS AMENDED AND RESTATED STOCK INCENTIVE PLAN YEAR-END OPTION AWARD
EXHIBIT 10.36
THE XXXXXXX XXXXX AMENDED AND RESTATED
STOCK INCENTIVE PLAN
YEAR-END OPTION AWARD
STOCK INCENTIVE PLAN
YEAR-END OPTION AWARD
This Award Agreement sets forth the terms and conditions of the year-end award (this
“Award”) of Nonqualified Stock Options (“ Year-End Options”) 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. The Award Statement delivered to you sets forth (i) the Date of Grant of
the Year-End Options, (ii) the number of Year-End Options and (iii) the Exercise Price
of each Year-End Option. Until shares of Common Stock (“Shares”) are delivered to you
pursuant to Paragraph 7 after you exercise your Year-End Options, you have no rights as a
shareholder of GS Inc. This Award is conditioned on your executing the related signature card
and returning it to the address designated and/or by the method specified by the date specified,
and 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 (which, among other things, opens
the custody account referred to in paragraph 7 if you have not done so
already), you will have confirmed your acceptance of all of the terms and conditions of this Award
Agreement.
3. Expiration Date. The Expiration Date for your Year-End Options is November
25, 2016 (in New York). Notwithstanding anything to the contrary in this Award Agreement, but
subject to earlier termination as provided in this Award Agreement or otherwise in accordance with
the Plan, on the Expiration Date all of your then Outstanding Year-End Options shall
terminate.
4. Vesting.
(a) In General. Except as provided below in Paragraphs 4(b), 4(c), 4(d), 5(a), 5(b),
10(g), and 11, on each Vesting Date you shall become Vested in the number or percentage of your
Year-End Options 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
for your Outstanding Vested Year-End Options to become exercisable, all other terms
and conditions of this Award Agreement shall continue to apply to such Vested Year-End
Options, and failure to meet such terms and conditions may result in the termination of this Award
(as a result of which no Shares subject to any such Vested Year-End Options would be
delivered).
(b) Death. Notwithstanding any other provision of this Award Agreement, if you die
prior to an applicable Vesting Date, 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, any such
Year-End Options that were Outstanding but that had not yet become Vested immediately prior to your
death shall become Vested, but all other conditions of this Award Agreement shall apply.
(c) Extended Absence, Retirement and Downsizing.
(i) Notwithstanding any other provision of this Award Agreement, but subject to Paragraph
5(c), 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, the condition set forth in Paragraph 5(a)
shall be waived with respect to any Year-End Options that were Outstanding but that had not
yet become Vested immediately prior to such termination of Employment (as a result of which such
Year-End Options shall become Vested), but all other conditions of this Award Agreement shall
continue to apply.
(ii) 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 5(a) shall be waived
with respect to your Year-End Options that were Outstanding but that had not yet become Vested
immediately prior to such termination of Employment (as a result of which such Year-End
Options shall become Vested), but all other 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.”
(d) Change in Control. Notwithstanding any other provision of this Award Agreement,
if there is a Change in Control and your Employment terminates as described in Paragraph 6(d), the
condition set forth in Paragraph 5(a) shall be waived with respect to any Year-End Options
that were Outstanding but that had not yet become Vested immediately prior to such termination of
Employment (as a result of which such Year-End Options shall become Vested), but all other
terms and conditions of this Award Agreement shall continue to apply.
5. Termination of Year-End Options Upon Certain Events.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 4(b),
4(c), 4(d) 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 Year-End Options
that were Outstanding but had not yet become Vested immediately prior to your termination of
Employment immediately shall terminate.
(b) Unless the Committee determines otherwise, your rights in respect of all of your
Outstanding Year-End Options (whether or not Vested) shall immediately terminate, such
Year-End Options shall cease to be Outstanding, and no Shares shall be delivered in respect
thereof, if at any time prior to the date you exercise such Year-End Options:
(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 13 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 such 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
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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 exercising any
Year-End Option under this Award Agreement, or 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 of 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 or any 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 exercise of your Year-End Options or delivery of Shares in respect thereto 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.
(c) Without limiting the application of Paragraph 5(b), your Outstanding
Year-End Options that become Vested in accordance with Paragraph 4(c)(i) immediately shall
terminate, and such Outstanding Year-End Options shall cease to be Outstanding if, prior to
the original Vesting Date with respect to such Year-End Options, 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 5(c) 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 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.”
6. Exercisability of Vested Year-End Options.
(a) In General. Only Year-End Options that are Outstanding and Vested can be
exercised. Outstanding Vested Year-End Options must be exercised subject to Paragraph 6(e) and
in accordance with procedures established by the Committee from time to time but, subject to
Paragraphs 6(b), 6(d) and 10(g), not earlier than the Initial Exercise Date. The Initial Exercise
Date for your Year-End Options shall be a date specified by the Committee that is not more
than thirty (30) Business Days after the date listed on the Award Statement as the Initial Exercise
Date, if that date is during a Window Period or, if the date listed on the Award Statement is not
during a Window Period, on a date specified by the Committee that is not more than 30 Business Days
after the first Trading Day of the first Window Period that begins thereafter. For this purpose, a
“Trading Day” is a day on which Shares trade regular way on the New York Stock Exchange.
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The Committee may from time to time prescribe periods during which the Vested Year-End
Options shall not be exercisable. In addition, the exercise procedures established by the
Committee may require you to take specific steps in order to exercise your Year-End Options
within a minimum time prior to the effective date of exercise.
(b) Death. Notwithstanding any other provision of this Award Agreement, if you die
and, at the time of your death, you have any Outstanding Year-End Options, the Transfer
Restrictions described in Paragraph 6(e) with respect to any Year-End Options and any Shares
delivered in respect thereto shall be removed, and such Outstanding Year-End Options (i) shall
be exercisable by the representative of your estate or, to the extent you specifically bequeath any
of your Outstanding Year-End Options under your will in accordance with such procedures, if
any, as may be adopted by the Committee 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) (a “Charitable Beneficiary”), by the Charitable Beneficiary, in either case in
accordance with Paragraph 6(a) beginning on the date that is 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 and (ii) unless earlier terminated in accordance with the terms of this Award Agreement,
shall remain exercisable until the Expiration Date.
(c) Other Terminations of Employment. Subject to Paragraphs 5(b) and 5(c), upon the
termination of your Employment for any reason (other than death or Cause), but subject to Paragraph
10(g), your then Outstanding Vested Year-End Options shall be exercisable in accordance with
Paragraph 6(a) beginning on the Initial Exercise Date and, unless earlier terminated in accordance
with the terms of this Award Agreement, shall remain exercisable until the Expiration Date.
(d) Change in Control. Notwithstanding anything to the contrary in this Award
Agreement, if 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, as provided in
Paragraph 4(d), all of your Year-End Options that were Outstanding but that had not yet become
Vested immediately prior to your termination of Employment, shall become Vested, and all of your
Outstanding Vested Year-End Options shall become exercisable and, unless earlier terminated in
accordance with the terms of this Award Agreement, shall remain exercisable until the Expiration
Date and the Transfer Restrictions described in Paragraph 6(e) with respect to any Year-End
Options and any Shares delivered in respect thereto shall be removed.
(e) Transfer Restrictions on Shares after Exercise. Subject to Paragraphs 6(b), 6(d)
and 10(g), notwithstanding any other provision of this Award Agreement, (i) (A) no sale, exchange,
transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition of
(including through the use of any cash-settled instrument) any Shares acquired in connection with
the exercise of your Year-End Options, whether voluntarily or involuntarily by you; and (B) no
exercise of any Year-End Options involving the sale of Shares acquired in respect of such
exercise (the restrictions in clauses (i)(A) and (i)(B) of this Paragraph 6(e) being referred to
collectively as the “Transfer Restrictions”) may be effected before the first anniversary of the
Initial Exercise Date (the “Transferability Date”), and any purported sale, exchange, transfer,
assignment, pledge, hypothecation, fractionalization, hedge, other disposition or exercise in
violation of the Transfer Restrictions shall be void; and (ii) if and to the extent Shares subject
to your Year-End Options are certificated, the certificates representing such Shares, shall
bear a legend specifying that such Shares are subject to the restrictions described in this
Paragraph 6(e) and GS Inc. shall advise its transfer agent to place a stop order against the
transfer of such Shares in violation of such Transfer Restrictions. Any Shares acquired in
connection with any exercise of your Year-End Options prior to the Transferability Date shall
be held in the Custody Account or other account designated by the Firm. Within 30 Business Days
after the Transferability Date (or any other date for which removal of the Transfer Restrictions is
called for), GS Inc. shall take, or shall cause to be taken, such steps as may be necessary to
remove the Transfer Restrictions.
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7. Delivery. Subject to Section 6(e), unless otherwise determined by the Committee,
or as otherwise provided in this Award Agreement, including, without limitation, Paragraphs 10 and
11, after receipt of payment of the Exercise Price in respect of a Year-End Option, a Share
shall be delivered by book-entry credit to the Custody Account maintained by you, and until the
Transferability Date, shall be subject to the Transfer Restrictions. 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 the provisions of Section
3.21.1 of the Plan, as a result of which delivery of your Shares may be delayed. In accordance
with Section 1.3.2(h) of the Plan, in the discretion of the Committee, in lieu of all or any
portion of the Shares otherwise deliverable upon the exercise of all or any portion of your
Year-End Options, 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.
8. Repayment. The provisions of Section 2.3.5 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 exercise were not satisfied) shall
apply to this Award.
9. Non-transferability. Except as otherwise may be provided in this Paragraph or as
otherwise may be provided by the Committee, and without limiting any permitted transfer in
accordance with Paragraph 10(g), 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 9 or Section 3.5 of the Plan shall be void. The Committee may adopt
procedures pursuant to which some or all recipients of Year-End Options may transfer some or
all of their Year-End Options 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.
10. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares upon exercise of your Year-End Options 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 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 Year-End Options(s) (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) If you are or become a Managing Director, your rights in respect of your Year-End
Options 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 Year-End Options 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.
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(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, 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
Year-End Options 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 exercise of your Year-End Options or the sale of
Shares delivered to you hereunder.
(f) Without limiting the application of Paragraph 6(e), GS Inc. may affix to Certificates
representing Shares issued pursuant to this Award Agreement upon exercise of your Year-End
Options 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 5(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 Year-End Options 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 Year-End Options that are Vested;
then, in the case of Paragraph 10(g)(i) above, the condition set forth in Paragraph 5(a) shall be
waived with respect to any Year-End Options you then hold that had not yet become Vested (as a
result of which such
Year-End Options shall become Vested) and, in the cases of Paragraphs
10(g)(i) and 10(g)(ii) above, at the sole discretion of the Firm, (a) such Outstanding Vested
Year-End Options shall be cancelled and as soon as practicable after the Committee has received
satisfactory documentation relating to your Conflicted Employment (the “Release Date”) you shall
receive a payment equal to the excess (if any) of (x) the Fair Market Value of a Share on the
Business Day immediately prior to the Release Date multiplied by the number of your Year-End
Options that were Outstanding and Vested immediately prior to such cancellation over (y) the
Exercise Price multiplied by the number of such Outstanding Vested Year-End Options; (b) both
the Initial Exercise Date and Transferability Date shall become the Release Date or (c) if and to
the extent provided in any procedures adopted by the Committee, you may be permitted to transfer
your Outstanding Vested Year-End Options for value to a party or parties acceptable to the
Firm (which may include the Firm). Notwithstanding anything else herein, the actions described in
this Paragraph 10(g) shall be permitted 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).
11. Right of Offset. The obligation to deliver Shares under this Award Agreement upon
exercise of your Year-End Options 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.
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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 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. BY ACCEPTING THIS 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. 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.
15. 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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