-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BVJHeOOlULtGFaXj2OAMcq9Muk2U68tKt2oRnFUvAl0CiLryvm9IVCjNUQSVnFFg n2P9rajQHqA86Gnu3mmVRw== 0000950123-03-012388.txt : 20031110 0000950123-03-012388.hdr.sgml : 20031110 20031110161833 ACCESSION NUMBER: 0000950123-03-012388 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20031110 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1128 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-110371 FILM NUMBER: 03988579 BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 S-3 1 y89747s3sv3.txt GOLDMAN SACHS GROUP, INC. AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 10, 2003 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------------------ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ THE GOLDMAN SACHS GROUP, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 13-4019460 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
------------------------ 85 BROAD STREET NEW YORK, NEW YORK 10004 (212) 902-1000 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) KENNETH L. JOSSELYN THE GOLDMAN SACHS GROUP, INC. 85 BROAD STREET NEW YORK, NEW YORK 10004 (212) 902-1000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------ COPIES TO: JOHN P. MEAD ROBERT W. REEDER III SULLIVAN & CROMWELL LLP 125 BROAD STREET NEW YORK, NEW YORK 10004 (212) 558-4000 ------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement. ------------------------ If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434 under the Securities Act, check the following box. [ ] ------------------------ CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share.......... 500,000 $95.255 $47,627,500 $3,854 Rights(2)....................................... (2) (2) (2) (2) - --------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of 1933, and based on the average of the high and low prices of the Common Stock on November 5, 2003 as reported by the Consolidated Tape Association. (2) Each share of Common Stock includes one Shareholder Protection Right as described under "Description of Capital Stock". THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED. Subject to Completion. Dated November 10, 2003. Shares THE GOLDMAN SACHS GROUP, INC. [GOLDMAN SACHS LOGO] Common Stock ---------------------- This prospectus relates to shares of common stock of The Goldman Sachs Group, Inc. to be offered for sale by the charitable organizations described under the heading "Selling Shareholders". The distribution of the common stock by these charitable organizations may be effected from time to time, including: - in underwritten public offerings; - in ordinary brokerage transactions on securities exchanges, including the New York Stock Exchange; - to or through brokers or dealers who may act as principal or agent; or - in one or more negotiated transactions. The brokers or dealers through or to whom the shares of common stock may be sold may be deemed underwriters of the shares within the meaning of the Securities Act of 1933, in which event all brokerage commissions or discounts and other compensation received by those brokers or dealers may be deemed to be underwriting compensation. To the extent required, the names of any underwriters and applicable commissions or discounts and any other required information with respect to any particular sale will be set forth in an accompanying prospectus supplement. Those underwriters may include affiliates of The Goldman Sachs Group, Inc., including Goldman, Sachs & Co. See "Plan of Distribution" for a further description of how the selling shareholders may dispose of the shares covered by this prospectus. Goldman Sachs will not receive any of the proceeds from sales of the shares of common stock made by the selling shareholders pursuant to this prospectus. Goldman Sachs' common stock is listed on the New York Stock Exchange under the symbol "GS". The last reported sale price of the common stock on November 7, 2003 was $96.98 per share. ---------------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ---------------------- GOLDMAN, SACHS & CO. ---------------------- Prospectus dated , 2003. AVAILABLE INFORMATION The Goldman Sachs Group, Inc. is required to file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any documents filed by us at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Our filings with the SEC are also available to the public through the SEC's Internet site at http://www.sec.gov and through the NYSE, 20 Broad Street, New York, New York 10005, on which our common stock is listed. We have filed a registration statement on Form S-3 with the SEC relating to the shares of common stock covered by this prospectus. This prospectus is a part of the registration statement and does not contain all of the information in the registration statement. Whenever a reference is made in this prospectus to a contract or other document of Goldman Sachs, please be aware that the reference is only a summary and that you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document. You may review a copy of the registration statement at the SEC's public reference room in Washington, D.C., as well as through the SEC's Internet site. The SEC's rules allow us to "incorporate by reference" information into this prospectus. This means that we can disclose important information to you by referring you to another document. Any information referred to in this way is considered part of this prospectus from the date we file that document. Any reports filed by us with the SEC after the date of this prospectus and before the date that the offering of the shares of common stock offered through this prospectus is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus. The Goldman Sachs Group, Inc. incorporates by reference into this prospectus the following documents or information filed with the SEC (File No. 001-14965): (1) Annual Report on Form 10-K for the fiscal year ended November 29, 2002; (2) Quarterly Report on Form 10-Q for the fiscal quarter ended February 28, 2003; (3) Quarterly Report on Form 10-Q for the fiscal quarter ended May 30, 2003; (4) Quarterly Report on Form 10-Q for the fiscal quarter ended August 29, 2003; (5) Current Report on Form 8-K, dated December 19, 2002; (6) Current Report on Form 8-K, dated December 20, 2002; (7) Current Report on Form 8-K, dated January 15, 2003; (8) Current Report on Form 8-K, dated March 20, 2003; (9) Current Report on Form 8-K, dated April 16, 2003; (10) Current Report on Form 8-K, dated April 28, 2003; (11) Current Report on Form 8-K, dated June 25, 2003; (12) Current Report on Form 8-K, dated September 23, 2003; (13) The description of common stock contained in the Registration Statement on Form 8-A, dated April 27, 1999, of The Goldman Sachs Group, Inc., filed with the SEC under Section 12(b) of the Securities Exchange Act of 1934; and (14) All documents filed by The Goldman Sachs Group, Inc. under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of the initial registration statement and before effectiveness of the registration statement, and after the date of this prospectus and before the termination of this offering. We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon his or her written or oral request, a copy of any or all documents referred to above which have been or may be incorporated by reference into this prospectus, excluding exhibits to those documents unless they are specifically incorporated by reference into those documents. You can request those documents from our Director of Investor Relations, 85 Broad Street, New York, New York 10004, telephone (212) 902-0300. 2 USE OF PROCEEDS All of the shares of our common stock offered by this prospectus will be sold by charitable organizations. As a result, we will not receive any of the proceeds from the sale of these shares. SELLING SHAREHOLDERS Our board of directors and, in the case of our former profit participating limited partners and their successors in interest, the shareholders' committee under the shareholders' agreement will waive certain transfer restrictions in order to permit certain of our former profit participating limited partners and certain former owners of Walter N. Frank & Co. and their successors in interest to make charitable contributions of shares of common stock. See "Shares Eligible for Future Sale" for a discussion of the transfer restrictions to be waived by our board of directors and the shareholders' committee. These charitable contributions may be made only to charitable foundations and public charities that are charitable organizations as described in the Internal Revenue Code, whether or not organized in the United States, and only after the date of this prospectus. The charitable organizations that receive the contributions of shares of common stock may sell some or all of those shares under this prospectus from time to time and the charitable organizations making such sales are the selling shareholders under this prospectus. See "Plan of Distribution" for a description of the various ways in which those sales may occur. Prior to the first use of this prospectus for making sales of shares of common stock, we will file an amendment to this prospectus to set forth the name and number of shares beneficially owned by the charitable organizations that propose to use this prospectus for effecting sales of shares of common stock and also to set forth any other required information. Thereafter, each sale of shares by any selling shareholder may, if required, be accompanied by a supplement to this prospectus setting forth the name of the selling shareholder using that prospectus supplement, the number of shares being sold and a supplemental plan of distribution describing the specific manner of sale of those shares. 3 DESCRIPTION OF CAPITAL STOCK Pursuant to our amended and restated certificate of incorporation, our authorized capital stock consists of 4,350,000,000 shares, each with a par value of $0.01 per share, of which: - 150,000,000 shares are designated as preferred stock, none of which are outstanding; - 4,000,000,000 shares are designated as common stock, 472,954,907 shares of which were outstanding as of October 22, 2003; and - 200,000,000 shares are designated as nonvoting common stock, none of which are outstanding. All outstanding shares of common stock are validly issued, fully paid and nonassessable. The shareholders' agreement contains provisions relating to the voting and disposition of certain shares of common stock. See "Shareholders' Agreement" for a discussion of those provisions. PREFERRED STOCK Our authorized capital stock includes 150,000,000 shares of preferred stock. Our board of directors is authorized to divide the preferred stock into series and, with respect to each series, to determine the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions thereof, including the dividend rights, conversion or exchange rights, voting rights, redemption rights and terms, liquidation preferences, sinking fund provisions and the number of shares constituting the series. Our board of directors could, without shareholder approval, issue preferred stock with voting and other rights that could adversely affect the voting power of the holders of common stock and which could have certain anti-takeover effects. COMMON STOCK Each holder of common stock is entitled to one vote for each share owned of record on all matters submitted to a vote of shareholders. There are no cumulative voting rights. Accordingly, the holders of a plurality of the shares of common stock voting for the election of directors can elect all the directors if they choose to do so, subject to any voting rights of holders of preferred stock to elect directors. For a discussion of the provisions relating to the voting of certain shares of common stock, see "Shareholders' Agreement". Subject to the preferential rights of any holders of any outstanding series of preferred stock, the holders of common stock, together with the holders of the nonvoting common stock, are entitled to such dividends and distributions, whether payable in cash or otherwise, as may be declared from time to time by our board of directors from legally available funds. Subject to the preferential rights of holders of any outstanding series of preferred stock, upon our liquidation, dissolution or winding-up and after payment of all prior claims, the holders of common stock, with the shares of the common stock and the nonvoting common stock being considered as a single class for this purpose, will be entitled to receive pro rata all our assets. Other than the shareholder protection rights discussed below, holders of common stock have no redemption or conversion rights or preemptive rights to purchase or subscribe for securities of Goldman Sachs. NONVOTING COMMON STOCK The nonvoting common stock has the same rights and privileges as, ranks equally and shares proportionately with, and is identical in all respects as to all matters to, the common stock, except that the nonvoting common stock has no voting rights other than those voting rights required by law. 4 SHAREHOLDER PROTECTION RIGHTS Each share of common stock has attached to it a shareholder protection right. The shareholder protection rights are currently represented only by the certificates for the shares and will not trade separately from the shares unless and until: - it is announced by Goldman Sachs that a person or group has become the beneficial owner of 15% or more of the outstanding common stock (other than persons deemed to beneficially own common stock solely because they are parties to the shareholders' agreement, members of the shareholders' committee or certain other persons)(an "acquiring person"); or - ten business days (or such later date as our board of directors may fix by resolution) after the date a person or group commences a tender or exchange offer that would result in such person or group becoming an acquiring person. If and when the shareholder protection rights separate and prior to the date of the announcement by Goldman Sachs that any person has become an acquiring person, each shareholder protection right will entitle the holder to purchase 1/100 of a share of Series A participating preferred stock for an exercise price of $250. Each 1/100 of a share of Series A participating preferred stock would have economic and voting terms equivalent to one share of common stock. Upon the date of the announcement by Goldman Sachs that any person or group has become an acquiring person, each shareholder protection right (other than shareholder protection rights beneficially owned by the acquiring person or their transferees, which shareholder protection rights become void) will entitle its holder to purchase, for the exercise price, a number of shares of common stock having a market value of twice the exercise price. Also, if, after the date of the announcement by Goldman Sachs that any person has become an acquiring person, the acquiring person controls our board of directors and: - Goldman Sachs is involved in a merger or similar form of business combination and (i) any term of the transaction provides for different treatment of the shares of capital stock held by the acquiring person as compared to the shares of capital stock held by all other shareholders or (ii) the person with whom such transaction occurs is the acquiring person or an affiliate thereof; or - Goldman Sachs sells or transfers assets representing more than 50% of its assets or generating more than 50% of its operating income or cash flow to any person other than Goldman Sachs or its wholly owned subsidiaries, then each shareholder protection right will entitle its holder to purchase, for the exercise price, a number of shares of capital stock with the greatest voting power in respect of the election of directors of either the acquiring person or the other party to such transaction, depending on the circumstances of the transaction, having a market value of twice the exercise price. If any person or group acquires from 15% to and including 50% of the common stock, our board of directors may, at its option, exchange each outstanding shareholder protection right, except for those held by an acquiring person or their transferees, for one share of common stock. The shareholder protection rights may be redeemed by our board of directors for $0.01 per shareholder protection right prior to the date of the announcement by Goldman Sachs that any person has become an acquiring person. Our charter permits this redemption right to be exercised by our board of directors (or certain directors specified or qualified by the terms of the instrument governing the shareholder protection rights). The shareholder protection rights will not prevent a takeover of Goldman Sachs. However, these rights may cause substantial dilution to a person or group that acquires 15% or more of 5 the common stock unless the shareholder protection rights are first redeemed by our board of directors. LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS Our charter provides that a director of Goldman Sachs will not be liable to Goldman Sachs or its shareholders for monetary damages for breach of fiduciary duty as a director, except in certain cases where liability is mandated by the Delaware General Corporation Law. Our by-laws provide for indemnification, to the fullest extent permitted by law, of any person made or threatened to be made a party to any action, suit or proceeding by reason of the fact that such person is or was a director or officer of Goldman Sachs, or is or was a director of a subsidiary of Goldman Sachs, or is or was a member of the shareholders' committee acting under the shareholders' agreement or, at the request of Goldman Sachs, serves or served as a director or officer of or in any other capacity for, or in relation to, any other enterprise, against all expenses, liabilities, losses and claims actually incurred or suffered by such person in connection with the action, suit or proceeding. Our by-laws also provide that, to the extent authorized from time to time by our board of directors, Goldman Sachs may provide to any one or more employees and other agents of Goldman Sachs or any subsidiary or other enterprise, rights of indemnification and to receive payment or reimbursement of expenses, including attorneys' fees, that are similar to the rights conferred by the by-laws on directors and officers of Goldman Sachs or any subsidiary or other enterprise. CHARTER PROVISIONS APPROVING CERTAIN ACTIONS Our charter provides that our board of directors may determine to take the following actions, in its sole discretion, and Goldman Sachs and each shareholder of Goldman Sachs will, to the fullest extent permitted by law, be deemed to have approved and ratified, and waived any claim relating to, the taking of any of these actions: - causing Goldman Sachs to register with the SEC for resale shares of common stock held by our directors, employees and former directors and employees and our subsidiaries and affiliates and former partners and employees of The Goldman Sachs Group, L.P. and its subsidiaries and affiliates; and - making payments to, and other arrangements with, certain former limited partners of Goldman Sachs, including managing directors who were profit participating limited partners, in order to compensate them for, or to prevent, significantly disproportionate adverse tax or other consequences arising out of our incorporation. Our board of directors has exercised its authority under the charter provision discussed above to grant registration rights to the selling shareholders as described under "Plan of Distribution". SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW Goldman Sachs is subject to the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A "business combination" includes a merger, asset sale or a transaction resulting in a financial benefit to the interested stockholder. An "interested stockholder" is a person who, together with affiliates and associates, owns (or, in certain cases, within the preceding three years, did own) 15% or more of the corporation's outstanding voting stock. Under Section 203, a business combination between 6 Goldman Sachs and an interested stockholder is prohibited unless it satisfies one of the following conditions: - prior to the time the stockholder became an interested stockholder, the board of directors of Goldman Sachs must have previously approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; - on consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of Goldman Sachs outstanding at the time the transaction commenced (excluding, for purposes of determining the number of shares outstanding, shares owned by persons who are directors and officers); or - the business combination is approved by the board of directors of Goldman Sachs and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. Our board of directors has adopted a resolution providing that the shareholders' agreement will not create an "interested stockholder". CERTAIN ANTI-TAKEOVER MATTERS Our charter and by-laws include a number of provisions that may have the effect of encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. These provisions include: CLASSIFIED BOARD OF DIRECTORS Our charter provides for a board of directors divided into three classes, with one class to be elected each year to serve for a three-year term. As a result, at least two annual meetings of shareholders may be required for the shareholders to change a majority of our board of directors. In addition, the shareholders of Goldman Sachs can only remove directors for cause by the affirmative vote of the holders of not less than 80% of the outstanding shares of capital stock of Goldman Sachs entitled to vote in the election of directors. Vacancies on our board of directors may be filled only by our board of directors. The classification of directors and the inability of shareholders to remove directors without cause or to fill vacancies on the board of directors makes it more difficult to change the composition of our board of directors, but promotes a continuity of existing management. CONSTITUENCY PROVISION In accordance with our charter, a director of Goldman Sachs may (but is not required to) in taking any action (including an action that may involve or relate to a change or potential change in control of Goldman Sachs) consider, among other things, the effects that Goldman Sachs' actions may have on other interests or persons (including its employees, former partners of The Goldman Sachs Group, L.P. and the community) in addition to our shareholders. ADVANCE NOTICE REQUIREMENTS Our by-laws establish advance notice procedures with regard to shareholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of shareholders of Goldman Sachs. These procedures provide that notice of such shareholder proposals must be timely given in writing to the Secretary of Goldman Sachs prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be 7 received at the principal executive offices of Goldman Sachs not less than 90 days nor more than 120 days prior to the anniversary date of the annual meeting for the preceding year. The notice must contain certain information specified in the by-laws. NO ABILITY OF SHAREHOLDERS TO CALL SPECIAL MEETINGS Our charter and by-laws deny shareholders the right to call a special meeting of shareholders. Our charter and by-laws provide that special meetings of the shareholders may be called only by a majority of the board of directors. NO WRITTEN CONSENT OF SHAREHOLDERS Our charter requires all shareholder actions to be taken by a vote of the shareholders at an annual or special meeting, and does not permit our shareholders to act by written consent, without a meeting. MAJORITY VOTE NEEDED FOR SHAREHOLDER PROPOSALS Our by-laws require that any shareholder proposal be approved by a majority of all of the outstanding shares of common stock and not by only a majority of the shares present at the meeting and entitled to vote. This requirement may make it more difficult to approve shareholder resolutions. AMENDMENT OF BY-LAWS AND CHARTER Our charter requires the approval of not less than 80% of the voting power of all outstanding shares of Goldman Sachs' capital stock entitled to vote to amend any by-law by shareholder action or the charter provisions described in this section. Those provisions make it more difficult to dilute the anti-takeover effects of our by-laws and our charter. BLANK CHECK PREFERRED STOCK Our charter provides for 150,000,000 authorized shares of preferred stock. The existence of authorized but unissued shares of preferred stock may enable the board of directors to render more difficult or to discourage an attempt to obtain control of Goldman Sachs by means of a merger, tender offer, proxy contest or otherwise. For example, if in the due exercise of its fiduciary obligations, the board of directors were to determine that a takeover proposal is not in the best interests of Goldman Sachs, the board of directors could cause shares of preferred stock to be issued without shareholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquiror or insurgent shareholder or shareholder group. In this regard, the charter grants our board of directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common stock. The issuance may also adversely affect the rights and powers, including voting rights, of such holders and may have the effect of delaying, deterring or preventing a change in control of Goldman Sachs. LISTING The common stock is listed on the NYSE under the symbol "GS". TRANSFER AGENT The transfer agent for the common stock is Mellon Investor Services LLC. 8 SHAREHOLDERS' AGREEMENT As of October 22, 2003, our current managing directors and former profit participating limited partners collectively beneficially owned over 157 million shares of common stock, or in excess of 32% of the total shares of common stock outstanding. Substantially all of these shares are subject to a shareholders' agreement, which provides for coordinated voting with respect to over 90% of these shares as of October 22, 2003. As a result of these arrangements, the managing directors have significant influence over the composition of our board of directors and our management and policies. SHARES ELIGIBLE FOR FUTURE SALE Future sales of substantial amounts of common stock in the public market or otherwise, or the perception that such sales may occur, could adversely affect the prevailing market price of our common stock. As described below, a substantial number of shares of common stock are eligible for future sale: - Over 93 million shares beneficially owned by our former profit participating limited partners and the former owners of Hull, Spear, Leeds & Kellogg and Benjamin Jacobson & Sons are transferable beginning in May 2004; earlier sales could occur with the consent of, in the case of our former profit participating limited partners, the shareholders' committee and, in the case of the former owners of Hull, Spear, Leeds & Kellogg, and Benjamin Jacobson & Sons, our board of directors; - Approximately 22 million shares are deliverable to our employees in June 2004 pursuant to restricted stock units and upon exercise of stock options granted in connection with our initial public offering and pursuant to contributions made to our defined contribution plan in connection with our initial public offering, in each case, assuming the relevant conditions are satisfied. We also pay a portion of our employees' compensation in equity-based awards and issue equity-based awards to help attract, retain and motivate our employees. Shares may be delivered under these awards from time to time, in accordance with the applicable vesting and delivery provisions. Approximately 36 million shares are deliverable to our employees in January 2004 under these awards assuming the relevant conditions are satisfied. Our board of directors and the shareholders' committee will waive the applicable transfer restrictions to permit the charitable contributions contemplated by this prospectus. See "Selling Shareholders" for further information on the charitable contributions. 9 PLAN OF DISTRIBUTION The selling shareholders, and their pledgees, donees, transferees or other successors in interest, may offer and sell, from time to time, some or all of the shares of common stock covered by this prospectus. We have registered the shares of common stock covered by this prospectus for offer and sale by the selling shareholders so that those shares may be freely sold to the public by them. Registration of the shares of common stock covered by this prospectus does not mean, however, that those shares necessarily will be offered or sold. We will not receive any proceeds from any sale by the selling shareholders of the securities. See "Use of Proceeds". We will pay all costs, expenses and fees in connection with the registration of the shares of common stock, including fees of our counsel and accountants, fees payable to the SEC and listing fees. We estimate those fees and expenses to be approximately $ . The selling shareholders will pay all underwriting discounts and commissions and similar selling expenses, if any, attributable to the sale of the shares of common stock covered by this prospectus. The selling shareholders, including their pledgees, donees, transferees or other successors in interest, may sell the shares of common stock covered by this prospectus from time to time, at market prices prevailing at the time of sale, at prices related to market prices, at a fixed price or prices subject to change or at negotiated prices, by a variety of methods including the following: - in privately negotiated transactions; - through broker-dealers, who may act as agents or principals; - in a block trade in which a broker-dealer will attempt to sell a block of shares of common stock as agent but may position and resell a portion of the block as principal to facilitate the transaction; - through one or more underwriters on a firm commitment or best-efforts basis; - directly to one or more purchasers; - through agents; or - in any combination of the above. In effecting sales, brokers or dealers engaged by the selling shareholders may arrange for other brokers or dealers to participate. Broker-dealer transactions may include: - purchases of the shares of common stock by a broker-dealer as principal and resales of the shares of common stock by the broker-dealer for its account pursuant to this prospectus; - ordinary brokerage transactions; or - transactions in which the broker-dealer solicits purchasers. At any time a particular offer of the shares of common stock covered by this prospectus is made, a revised prospectus or prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock covered by this prospectus being offered and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions, concessions and other items constituting compensation from the selling shareholders and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Such prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part, will be filed with the SEC to reflect the disclosure of additional information with respect to the distribution of the shares of common stock covered by this prospectus. 10 In connection with the sale of the shares of common stock covered by this prospectus through underwriters, underwriters may receive compensation in the form of underwriting discounts or commissions and may also receive commissions from purchasers of shares of common stock for whom they may act as agent. Underwriters may sell to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent. Goldman, Sachs & Co., a subsidiary of The Goldman Sachs Group, Inc., may be one such underwriter. Because Goldman, Sachs & Co. is a member of the NYSE and because of its relationship to The Goldman Sachs Group, Inc., it is not permitted under the rules of the NYSE to make markets in or recommendations regarding the purchase or sale of the common stock. Goldman, Sachs & Co. is a subsidiary of The Goldman Sachs Group, Inc., and The Goldman Sachs Group, Inc. is the parent of Goldman, Sachs & Co. Rule 2720 of the Conduct Rules of the National Association of Securities Dealers, Inc. imposes certain requirements when an NASD member, such as Goldman, Sachs & Co., distributes an affiliated company's securities. Goldman, Sachs & Co. has advised The Goldman Sachs Group, Inc. that each particular offering of securities in which it participates will comply with the applicable requirements of Rule 2720, including the requirement that no sales may be made to discretionary accounts by any NASD member without the prior specific written approval of the customer. Any NASD member that participates in an offering of common stock must comply with, and make any filings required by, Rule 2710 of the Conduct Rules of the NASD. Any underwriters, broker-dealers or agents participating in the distribution of the shares of common stock covered by this prospectus may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, and any commissions received by any of those underwriters, broker-dealers or agents may be deemed to be underwriting commissions under the Securities Act of 1933. In connection with the proposed donation of shares of common stock to charitable foundations and public charities, our board of directors has exercised its authority under our plan of incorporation and charter to adopt a supplement to our existing registration rights instrument. The following is a description of the material terms of the registration rights instrument, as so supplemented. You should, however, refer to the exhibits that are a part of the registration statement for a copy of the registration rights instrument and the supplemental registration rights instrument. See "Available Information". Pursuant to the registration rights instrument, as supplemented, we have agreed to register the shares of common stock covered by this prospectus for resale by charitable foundations and public charities. We have also agreed in the registration rights instrument, as supplemented, to pay all of the fees and expenses relating to the offering by the charitable organizations, other than any agency fees and commissions or underwriting commissions or discounts or any transfer taxes incurred by the charitable organizations in connection with their resales, and have agreed to indemnify the charitable organizations against certain liabilities, including those arising under the Securities Act of 1933. We may amend the registration rights instrument and the supplemental registration rights instrument in any manner we deem appropriate, without the consent of any charitable organization. However, we may not make any amendment that would cause the shares of common stock covered by this prospectus to fail to be "qualified appreciated stock" within the meaning of Section 170 of the Internal Revenue Code. In addition, we may not make any amendment that would materially and adversely affect the rights of any charitable organization without the consent of a majority of the materially and adversely affected charitable organizations. 11 Some of the shares of common stock covered by this prospectus may be sold in private transactions or under Rule 144 under the Securities Act of 1933 rather than pursuant to this prospectus. VALIDITY OF COMMON STOCK The validity of the common stock offered hereby has been passed upon for The Goldman Sachs Group, Inc. by Sullivan & Cromwell LLP, New York, New York. EXPERTS The financial statements of Goldman Sachs as of November 29, 2002 and November 30, 2001 and for each of the three years in the period ended November 29, 2002 incorporated by reference in this prospectus and the financial statement schedule incorporated by reference in the registration statement have been so incorporated in reliance on the reports of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. The historical income statement, balance sheet and common share data included in "Selected Consolidated Financial Data" for each of the five fiscal years in the period ended November 29, 2002 incorporated by reference in this prospectus have been so incorporated by reference in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. With respect to the unaudited condensed consolidated financial statements of Goldman Sachs as of and for the three and nine months ended August 29, 2003 and August 30, 2002, the three and six months ended May 30, 2003 and May 31, 2002 and the three months ended February 28, 2003 and February 22, 2002, all incorporated by reference in this prospectus, PricewaterhouseCoopers LLP reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate reports dated October , 2003, July 8, 2003 and April 9, 2003, respectively, incorporated by reference herein state that they did not audit and do not express an opinion on the unaudited condensed consolidated financial statements. Accordingly, the degree of reliance on their reports on such information should be restricted in light of the limited nature of the review procedures applied. PricewaterhouseCoopers LLP is not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their reports on the unaudited condensed consolidated financial statements because none of these reports is a "report" or a "part" of the registration statement prepared or certified by PricewaterhouseCoopers LLP within the meaning of Sections 7 and 11 of the Securities Act of 1933. CAUTIONARY STATEMENT PURSUANT TO THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 We have included or incorporated by reference in this prospectus statements that may constitute "forward-looking statements" within the meaning of the safe harbor provisions of The Private Securities Litigation Reform Act of 1995. These forward-looking statements are not historical facts but instead represent only our belief regarding future events, many of which, by their nature, are inherently uncertain and outside of our control. It is possible that our actual results may differ, possibly materially, from the anticipated results indicated in these forward-looking statements. Information regarding important factors that could cause actual results to differ, perhaps materially, from those in our forward-looking statements is contained under the caption "Item 1: Business -- Certain Factors That May Affect Our Business" in our Annual Report on Form 10-K for the fiscal year ended November 29, 2002, and under "Item 5: Other Information" in our 12 Quarterly Reports on Form 10-Q for the fiscal quarters ended August 29, 2003, May 30, 2003 and February 28, 2003, each of which is incorporated by reference in this prospectus. See "Available Information" above for information about how to obtain copies of our Annual and Quarterly Reports. 13 - ------------------------------------------------------- - ------------------------------------------------------- No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus. You must not rely on any unauthorized information or representations. This prospectus is an offer to sell only the shares offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in this prospectus is current only as of its date. ---------------------- TABLE OF CONTENTS
Page ---- Available Information.................. 2 Use of Proceeds........................ 3 Selling Shareholders................... 3 Description of Capital Stock........... 4 Shareholders' Agreement................ 9 Shares Eligible for Future Sale........ 9 Plan of Distribution................... 10 Validity of Common Stock............... 12 Experts................................ 12 Cautionary Statement Pursuant to The Private Securities Litigation Reform Act of 1995.......................... 12
- ------------------------------------------------------- - ------------------------------------------------------- - ------------------------------------------------------- - ------------------------------------------------------- Shares THE GOLDMAN SACHS GROUP, INC. Common Stock ---------------------- [GOLDMAN SACHS LOGO] ---------------------- GOLDMAN, SACHS & CO. ------------------------------------------------------- ------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following is a statement of the estimated expenses to be incurred by the Registrant in connection with the distribution of the securities registered under this registration statement:
AMOUNT TO BE PAID ---------- SEC registration fee........................................ $ 3,854 NASD fees................................................... 5,263 Legal fees and expenses..................................... * Accounting fees and expenses................................ * Printing fees............................................... * Miscellaneous............................................... * -------- Total............................................. $ * ========
- --------------- * To be completed by amendment. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee of or agent to the Registrant. The statute provides that it is not exclusive of other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise. Section 6.4 of the Registrant's by-laws provides for indemnification by the Registrant of any director or officer (as such term is defined in the by-laws) of the Registrant who is or was a director of any of its subsidiaries, is or was a member of the shareholders' committee (which is described in the prospectus included in this registration statement) acting pursuant to the shareholders' agreement (as described in the prospectus included in this registration statement) or, at the request of the Registrant, is or was serving as a director or officer of, or in any other capacity for, any other enterprise, to the fullest extent permitted by law. The by-laws also provide that the Registrant shall advance expenses to a director or officer and, if reimbursement of such expenses is demanded in advance of the final disposition of the matter with respect to which such demand is being made, upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that the director or officer is not entitled to be indemnified by the Registrant. To the extent authorized from time to time by the board of directors of the Registrant, the Registrant may provide to any one or more employees of the Registrant, one or more officers, employees and other agents of any subsidiary or one or more directors, officers, employees and other agents of any other enterprise, rights of indemnification and to receive payment or reimbursement of expenses, including attorneys' fees, that are similar to the rights conferred in the by-laws of the Registrant on directors and officers of the Registrant or any subsidiary or other enterprise. The by-laws do not limit the power of the Registrant or its board of directors to provide other indemnification and expense reimbursement rights to directors, officers, employees, agents and other persons otherwise than pursuant to the by-laws. The Registrant has entered into agreements with certain directors, officers and employees who are asked to serve in specified capacities at subsidiaries and other entities. II-1 The Registrant has entered into an agreement that provides indemnification to its directors and officers and all other persons requested or authorized by the Registrant's board of directors to take actions on behalf of the Registrant in connection with certain registration statements for all losses, damages, costs and expenses incurred by the indemnified person arising out of the relevant registration statements. The Registrant has also entered into a similar indemnification agreement with its directors, some of its officers and all other persons requested or authorized by the Registrant's board of directors or any committee thereof to take actions on behalf of the Registrant or as an attorney-in-fact in connection with this registration statement, certain other registration statements and certain unregistered offerings of securities. These agreements are in addition to the Registrant's indemnification obligations under its by-laws. Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for payments of unlawful dividends or unlawful stock repurchases or redemptions, or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant's amended and restated certificate of incorporation provides for such limitation of liability. Policies of insurance are maintained by the Registrant under which its directors and officers are insured, within the limits and subject to the limitations of the policies, against certain expenses in connection with the defense of, and certain liabilities which might be imposed as a result of, actions, suits or proceedings to which they are parties by reason of being or having been such directors or officers. ITEM 16. EXHIBITS 2.1 Plan of Incorporation.* 4.1 Specimen of certificate representing The Goldman Sachs Group, Inc.'s common stock, par value $0.01 per share.* 4.2 Stockholder Protection Rights Agreement, dated as of April 5, 1999, between The Goldman Sachs Group, Inc. and ChaseMellon Shareholder Services, L.L.C., as Rights Agent.** 4.3 Registration Rights Instrument, dated as of December 10, 1999.*** 4.4 Supplemental Registration Rights Instrument, dated as of , 2003.**** 5.1 Opinion of Sullivan & Cromwell LLP, counsel to The Goldman Sachs Group, Inc.**** 15.1 Letter re Unaudited Interim Financial Information. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Sullivan & Cromwell LLP (included in Exhibit 5.1 above).**** 24.1 Power of Attorney (included on signature page).
- --------------- * Incorporated by reference to the corresponding exhibit to the Registrant's registration statement on Form S-1 (File No. 333-74449). ** Incorporated by reference to Exhibit 5 to the Registrant's registration statement on Form 8-A (File No. 001-14965), filed on June 29, 1999. *** Incorporated by reference to Exhibit G to Amendment No. 1 to Schedule 13D (File No. 005-56295), filed on December 17, 1999, relating to the Registrant's common stock. **** To be filed by amendment. II-2 ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes: (a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if the change in volume represents no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted against the Registrant by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, New York on the 10th day of November, 2003. THE GOLDMAN SACHS GROUP, INC. By: /s/ ESTA E. STECHER ------------------------------------ Name: Esta E. Stecher Title: Executive Vice President and General Counsel POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John A. Thain, Gregory K. Palm, David A. Viniar, Esta E. Stecher, and Kenneth L. Josselyn, and each of them severally, his or her true and lawful attorney-in-fact with power of substitution and resubstitution to sign in his or her name, place and stead, in any and all capacities, to do any and all things and execute any and all instruments that such attorney deems necessary or advisable under the U.S. Securities Act of 1933 (the "Securities Act") and any rules, regulations and requirements of the U.S. Securities and Exchange Commission (the "Commission") in connection with the registration under the Securities Act of the common stock of the Registrant for sale by stockholders of the Registrant, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her respective capacity as a member of the Board of Directors or officer of the Registrant to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission as any of them deems appropriate in respect of the common stock of the Registrant, to any and all amendments (including post-effective amendments) to this Registration Statement, to any related Rule 462(b) Registration Statement and to any other documents filed with the Commission, as fully for all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents, each acting alone, and his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the 10th day of November, 2003:
TITLE SIGNATURE ----- --------- Director, Chairman of the Board and Chief Executive Officer (Principal Executive Officer) /s/ HENRY M. PAULSON, JR. ---------------------------------------------- Henry M. Paulson, Jr. Director, President and Chief Operating Officer /s/ JOHN A. THAIN ---------------------------------------------- John A. Thain Director and Vice Chairman /s/ LLOYD C. BLANKFEIN ---------------------------------------------- Lloyd C. Blankfein
II-4
TITLE SIGNATURE ----- --------- Director /s/ LORD BROWNE OF MADINGLEY ---------------------------------------------- Lord Browne of Madingley Director /s/ JOHN H. BRYAN ---------------------------------------------- John H. Bryan Director /s/ CLAES DAHLBACK ---------------------------------------------- Claes Dahlback Director /s/ WILLIAM W. GEORGE ---------------------------------------------- William W. George Director /s/ JAMES A. JOHNSON ---------------------------------------------- James A. Johnson Director /s/ EDWARD M. LIDDY ---------------------------------------------- Edward M. Liddy Director /s/ RUTH J. SIMMONS ---------------------------------------------- Ruth J. Simmons Chief Financial Officer (Principal Financial Officer) /s/ DAVID A. VINIAR ---------------------------------------------- David A. Viniar Principal Accounting Officer /s/ SARAH G. SMITH ---------------------------------------------- Sarah G. Smith
II-5 INDEX TO EXHIBITS
SEQUENTIALLY EXHIBIT NUMBERED NO. DESCRIPTION PAGE - ------- ------------------------------------------------------------ ------------ 2.1 Plan of Incorporation.* 4.1 Specimen of certificate representing The Goldman Sachs Group, Inc.'s common stock, par value $0.01 per share.* 4.2 Stockholder Protection Rights Agreement, dated as of April 5, 1999, between The Goldman Sachs Group, Inc. and ChaseMellon Shareholder Services, L.L.C., as Rights Agent.** 4.3 Registration Rights Instrument, dated as of December 10, 1999.*** 4.4 Supplemental Registration Rights Instrument, dated as of , 2003.**** 5.1 Opinion of Sullivan & Cromwell LLP, counsel to The Goldman Sachs Group, Inc.**** 15.1 Letter re Unaudited Interim Financial Information. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Sullivan & Cromwell LLP (included in Exhibit 5.1 above).**** 24.1 Power of Attorney (included on signature page).
- --------------- * Incorporated by reference to the corresponding exhibit to the Registrant's registration statement on Form S-1 (File No. 333-74449). ** Incorporated by reference to Exhibit 5 to the Registrant's registration statement on Form 8-A (File No. 001-14965), filed on June 29, 1999. *** Incorporated by reference to Exhibit G to Amendment No. 1 to Schedule 13D (File No. 005-56295), filed on December 17, 1999, relating to the Registrant's common stock. **** To be filed by amendment. EX-15.1 3 y89747s3exv15w1.txt LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION Exhibit 15.1 November 10, 2003 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, DC 20549 Re: The Goldman Sachs Group, Inc. Registration Statement on Form S-3 Commissioners: We are aware that (i) our report dated October 9, 2003 on our review of the condensed consolidated statement of financial condition of The Goldman Sachs Group, Inc. and Subsidiaries (the "Company") as of August 29, 2003, the related condensed consolidated statements of earnings for the three and nine months ended August 29, 2003 and August 30, 2002, the condensed consolidated statement of changes in shareholders' equity for the nine months ended August 29, 2003, the condensed consolidated statements of cash flows for the nine months ended August 29, 2003 and August 30, 2002, and the condensed consolidated statements of comprehensive income for the three and nine months ended August 29, 2003 and August 30, 2002, included in the Company's Quarterly Report on Form 10-Q for the quarter ended August 29, 2003; (ii) our report dated July 8, 2003 on our review of the condensed consolidated statement of financial condition of the Company as of May 30, 2003, the related condensed consolidated statements of earnings for the three and six months ended May 30, 2003 and May 31, 2002, the condensed consolidated statement of changes in shareholders' equity for the six months ended May 30, 2003, the condensed consolidated statement of cash flows for the six months ended May 30, 2003 and May 31, 2002, and the condensed consolidated statements of comprehensive income for the three and six months ended May 30, 2003 and May 31, 2002 included in the Company's Quarterly Report on Form 10-Q for the quarter ended May 30, 2003; (iii) our report dated April 9, 2003 on our review of the condensed consolidated statement of financial condition of the Company as of February 28, 2003, the related condensed consolidated statements of earnings, cash flows and comprehensive income for the three months ended February 28, 2003 and February 22, 2002, and the condensed consolidated statement of changes in shareholders' equity for the three months ended February 28, 2003 included in the Company's Quarterly Report on Form 10-Q for the quarter ended February 28, 2003, are incorporated by reference into this Registration Statement on Form S-3 filed with the commission on November 10, 2003. Pursuant to Rule 436(c) under the Securities Act of 1933, such reports should not be considered a part of such Registration Statement, and are not reports prepared or certified by us within the meaning of Sections 7 and 11 of that Act. Very truly yours, /s/ PricewaterhouseCoopers LLP - -------------------------------- EX-23.1 4 y89747s3exv23w1.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated January 27, 2003, relating to the consolidated financial statements, selected consolidated financial data and the financial statement schedule of The Goldman Sachs Group, Inc. and Subsidiaries (the "Company"), which reports are included or incorporated by reference in the Company's Annual Report on Form 10-K for the fiscal year ended November 29, 2002. We also consent to the references to our firm under the caption "Experts" in such registration statement. /s/ Pricewaterhouse Coopers LLP - --------------------------------- PricewaterhouseCoopers LLP New York, New York November 10, 2003 -----END PRIVACY-ENHANCED MESSAGE-----