UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
For the fiscal year ended December 31, 2011
Form 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2011 | Commission File Number: 001-14965 |
The Goldman Sachs Group, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 13-4019460 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
200 West Street New York, N.Y. |
10282 (Zip Code) | |
(Address of principal executive offices) |
(212) 902-1000
(Registrants telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class: | Name of each exchange on which registered: | |
Common stock, par value $.01 per share |
New York Stock Exchange | |
Depositary Shares, Each Representing 1/1,000th Interest in a Share of Floating Rate Non-Cumulative Preferred Stock, Series A | New York Stock Exchange | |
Depositary Shares, Each Representing 1/1,000th Interest in a Share of 6.20% Non-Cumulative Preferred Stock, Series B | New York Stock Exchange | |
Depositary Shares, Each Representing 1/1,000th Interest in a Share of Floating Rate Non-Cumulative Preferred Stock, Series C | New York Stock Exchange | |
Depositary Shares, Each Representing 1/1,000th Interest in a Share of Floating Rate Non-Cumulative Preferred Stock, Series D | New York Stock Exchange | |
5.793% Fixed-to-Floating Rate Normal Automatic Preferred Enhanced Capital Securities of Goldman Sachs Capital II (and Registrants guarantee with respect thereto) | New York Stock Exchange | |
Floating Rate Normal Automatic Preferred Enhanced Capital Securities of Goldman Sachs Capital III (and Registrants guarantee with respect thereto) | New York Stock Exchange | |
Medium-Term Notes, Series B, Index-Linked Notes due February 2013; Index-Linked Notes due April 2013; and Index-Linked Notes due May 2013 | NYSE Amex | |
Medium-Term Notes, Series A, Index-Linked Notes due 2037 of GS Finance Corp. (and Registrants guarantee with respect thereto) | NYSE Arca | |
Medium-Term Notes, Series B, Index-Linked Notes due 2037 | NYSE Arca | |
Medium-Term Notes, Series D, 7.50% Notes due 2019 | New York Stock Exchange | |
6.125% Notes due 2060 | New York Stock Exchange | |
6.50% Notes due 2061 | New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes x No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act.
Yes ¨ No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of the Annual Report on Form 10-K or any amendment to the Annual Report on Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer x | Accelerated filer ¨ | Non-accelerated filer ¨ | Smaller reporting company ¨ | |||
(Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
As of June 30, 2011, the aggregate market value of the common stock of the registrant held by non-affiliates of the registrant was approximately $66.6 billion.
As of February 17, 2012, there were 494,904,018 shares of the registrants common stock outstanding.
Documents incorporated by reference: Portions of The Goldman Sachs Group, Inc.s Proxy Statement for its 2012 Annual Meeting of Shareholders are incorporated by reference in the Annual Report on Form 10-K in response to Part III, Items 10, 11, 12, 13 and 14.
THE GOLDMAN SACHS GROUP, INC.
ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2011
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Form 10-K Item Number | Page No. | |||||
PART I | 1 | |||||
Item 1 | 1 | |||||
1 | ||||||
1 | ||||||
2 | ||||||
3 | ||||||
5 | ||||||
5 | ||||||
6 | ||||||
6 | ||||||
7 | ||||||
8 | ||||||
19 | ||||||
Cautionary Statement Pursuant to the U.S. Private Securities Litigation Reform Act of 1995 |
20 | |||||
Item 1A | 21 | |||||
Item 1B | 34 | |||||
Item 2 | 34 | |||||
Item 3 | 34 | |||||
Item 4 | 34 | |||||
35 | ||||||
PART II | 37 | |||||
Item 5 | 37 | |||||
Item 6 | 37 | |||||
Item 7 | Managements Discussion and Analysis of Financial Condition and Results of Operations |
38 | ||||
Item 7A | 106 | |||||
Item 8 | 107 | |||||
Item 9 | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
223 | ||||
Item 9A | 223 | |||||
Item 9B | 223 | |||||
PART III | 223 | |||||
Item 10 | 223 | |||||
Item 11 | 223 | |||||
Item 12 | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
224 | ||||
Item 13 | Certain Relationships and Related Transactions, and Director Independence |
224 | ||||
Item 14 | 224 | |||||
PART IV | 225 | |||||
Item 15 | 225 | |||||
SIGNATURES | II-1 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
PART I
Goldman Sachs 2011 Form 10-K | 1 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
The table below presents our segment operating results.
Year Ended December 1 | % of 2011 | |||||||||||||||||
$ in millions | 2011 | 2010 | 2009 | Net Revenues |
||||||||||||||
Investment Banking |
Net revenues | $ | 4,355 | $ | 4,810 | $ | 4,984 | 15 | % | |||||||||
Operating expenses | 2,962 | 3,511 | 3,482 | |||||||||||||||
Pre-tax earnings | $ | 1,393 | $ | 1,299 | $ | 1,502 | ||||||||||||
Institutional Client Services |
Net revenues | $ | 17,280 | $ | 21,796 | $ | 32,719 | 60 | % | |||||||||
Operating expenses | 12,697 | 14,291 | 13,691 | |||||||||||||||
Pre-tax earnings | $ | 4,583 | $ | 7,505 | $ | 19,028 | ||||||||||||
Investing & Lending |
Net revenues | $ | 2,142 | $ | 7,541 | $ | 2,863 | 7 | % | |||||||||
Operating expenses | 2,673 | 3,361 | 3,523 | |||||||||||||||
Pre-tax earnings/(loss) | $ | (531 | ) | $ | 4,180 | $ | (660 | ) | ||||||||||
Investment Management |
Net revenues | $ | 5,034 | $ | 5,014 | $ | 4,607 | 18 | % | |||||||||
Operating expenses | 4,018 | 4,051 | 3,673 | |||||||||||||||
Pre-tax earnings | $ | 1,016 | $ | 963 | $ | 934 | ||||||||||||
Total |
Net revenues | $ | 28,811 | $ | 39,161 | $ | 45,173 | |||||||||||
Operating expenses 2 | 22,642 | 26,269 | 25,344 | |||||||||||||||
Pre-tax earnings | $ | 6,169 | $ | 12,892 | $ | 19,829 |
1. | Financial information concerning our business segments for 2011, 2010 and 2009 is included in Managements Discussion and Analysis of Financial Condition and Results of Operations and the Financial Statements and Supplementary Data, which are in Part II, Items 7 and 8, respectively, of this Form 10-K. See Note 25 to the consolidated financial statements in Part II, Item 8 of this Form 10-K for a further breakdown of our net revenues. |
2. | Includes the following expenses that have not been allocated to our segments: (i) net provisions for a number of litigation and regulatory proceedings of $175 million, $682 million and $104 million for the years ended December 2011, December 2010 and December 2009, respectively; (ii) charitable contributions of $103 million, $345 million and $810 million for the years ended December 2011, December 2010 and December 2009, respectively; and (iii) real estate-related exit costs of $14 million, $28 million and $61 million for the years ended December 2011, December 2010 and December 2009, respectively. |
2 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 3 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
4 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 5 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
As of December | ||||||||||||
in billions | 2011 | 2010 | 2009 | |||||||||
Alternative investments |
$ | 142 | $ | 148 | $ | 146 | ||||||
Equity |
126 | 144 | 146 | |||||||||
Fixed income |
340 | 340 | 315 | |||||||||
Total non-money market assets |
608 | 632 | 607 | |||||||||
Money markets |
220 | 208 | 264 | |||||||||
Total assets under management |
$ | 828 | $ | 840 | $ | 871 | ||||||
As of December | ||||||||||||
in billions | 2011 | 2010 | 2009 | |||||||||
Directly Distributed: |
||||||||||||
Institutional |
$ | 283 | $ | 286 | $ | 297 | ||||||
High-net-worth individuals |
227 | 229 | 231 | |||||||||
Third-Party Distributed: |
||||||||||||
Institutional, high-net-worth individuals and retail |
318 | 325 | 343 | |||||||||
Total |
$ | 828 | $ | 840 | $ | 871 |
6 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 7 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
8 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 9 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
10 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 11 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
12 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 13 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
14 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 15 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
16 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 17 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
18 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 19 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
20 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 21 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
22 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 23 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
24 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 25 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
26 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 27 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
28 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 29 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
30 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 31 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
32 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 33 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
34 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Goldman Sachs 2011 Form 10-K | 35 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
36 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Period |
Total Number of Shares Purchased |
Average Price Paid per Share |
Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs 1 |
Maximum Number of Shares That May Yet Be Purchased Under the Plans or Programs 1 |
||||||||||||
Month #1 (October 1, 2011 to October 31, 2011) |
1,700,868 | $ | 105.83 | 1,700,868 | 71,038,522 | |||||||||||
Month #2 (November 1, 2011 to November 30, 2011) |
5,219,606 | $ | 96.59 | 5,219,606 | 65,818,916 | |||||||||||
Month #3 (December 1, 2011 to December 31, 2011) |
2,295,716 | $ | 97.58 | 2,295,577 | 63,523,339 | |||||||||||
Total |
9,216,190 | 9,216,051 |
1. | On March 21, 2000, we announced that our Board had approved a repurchase program, pursuant to which up to 15 million shares of our common stock may be repurchased. This repurchase program was increased by an aggregate of 325 million shares by resolutions of our Board adopted on June 18, 2001, March 18, 2002, November 20, 2002, January 30, 2004, January 25, 2005, September 16, 2005, September 11, 2006, December 17, 2007 and July 18, 2011. We use our share repurchase program to help maintain the appropriate level of common equity and to substantially offset increases in share count over time resulting from employee share-based compensation. The repurchase program is effected primarily through regular open-market purchases, the amounts and timing of which are determined primarily by the firms current and projected capital position (i.e., comparisons of our desired level and composition of capital to our actual level and composition of capital) and its issuance of shares resulting from employee share-based compensation, but which may also be influenced by general market conditions and the prevailing price and trading volumes of our common stock. The repurchase program has no set expiration or termination date. Any repurchase of our common stock requires approval by the Federal Reserve Board. |
Goldman Sachs 2011 Form 10-K | 37 |
Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations
INDEX
Page No. | ||||
39 | ||||
40 | ||||
43 | ||||
45 | ||||
49 | ||||
50 | ||||
67 | ||||
74 | ||||
79 | ||||
82 | ||||
86 | ||||
93 | ||||
98 | ||||
104 | ||||
105 | ||||
105 |
38 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 39 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
40 | Goldman Sachs 2011 Form 10-K |
1. | Excluding the impact of the $465 million related to the U.K. bank payroll tax, the $550 million related to the SEC settlement and the $305 million impairment of our New York Stock Exchange (NYSE) Designated Market Maker (DMM) rights, diluted earnings per common share were $15.22 and ROE was 13.1% for 2010. We believe that presenting our 2010 results excluding the impact of these items is meaningful because it increases the comparability of period-to-period results. Diluted earnings per common share and ROE excluding these items are non-GAAP measures and may not be comparable to similar non-GAAP measures used by other companies. See Results of Operations Financial Overview below for further information about our calculation of diluted earnings per common share and ROE excluding the impact of these items. |
2. | See Results of Operations Financial Overview below for further information about our calculation of ROE. |
3. | We believe that presenting our 2011 results excluding the impact of the $1.64 billion preferred dividend related to the redemption of our Series G Preferred Stock (calculated as the difference between the carrying value and the redemption value of the preferred stock) is meaningful because it increases the comparability of period-to-period results. Diluted earnings per common share and ROE excluding this item are non-GAAP measures and may not be comparable to similar non-GAAP measures used by other companies. See Results of Operations Financial Overview below for further information about our calculation of diluted earnings per common share and ROE excluding the impact of this dividend. |
4. | Tangible book value per common share is a non-GAAP measure and may not be comparable to similar non-GAAP measures used by other companies. See Equity Capital Other Capital Metrics below for further information about our calculation of tangible book value per common share. |
5. | Tier 1 common ratio is a non-GAAP measure and may not be comparable to similar non-GAAP measures used by other companies. See Equity Capital Consolidated Regulatory Capital Ratios below for further information about our Tier 1 common ratio. |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 41 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
42 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 43 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
44 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Fair Value
Goldman Sachs 2011 Form 10-K | 45 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
46 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
As of December 2011 | As of December 2010 | |||||||||||||||||
in millions | Total at Fair Value |
Level 3 Total |
Total at Fair Value |
Level 3 Total |
||||||||||||||
Commercial paper, certificates of deposit, time deposits |
$ | 13,440 | $ | | $ | 11,262 | $ | | ||||||||||
U.S. government and federal agency obligations |
87,040 | | 84,928 | | ||||||||||||||
Non-U.S. government obligations |
49,205 | 148 | 40,675 | | ||||||||||||||
Mortgage and other asset-backed loans and securities: Loans and securities backed by commercial real estate |
6,699 | 3,346 | 7,510 | 3,976 | ||||||||||||||
Loans and securities backed by residential real estate |
7,592 | 1,709 | 9,532 | 2,501 | ||||||||||||||
Bank loans and bridge loans |
19,745 | 11,285 | 18,039 | 9,905 | ||||||||||||||
Corporate debt securities |
22,131 | 2,480 | 24,719 | 2,737 | ||||||||||||||
State and municipal obligations |
3,089 | 599 | 2,792 | 754 | ||||||||||||||
Other debt obligations |
4,362 | 1,451 | 3,232 | 1,274 | ||||||||||||||
Equities and convertible debentures |
65,113 | 13,667 | 67,833 | 11,060 | ||||||||||||||
Commodities |
5,762 | | 13,138 | | ||||||||||||||
Total cash instruments |
284,178 | 34,685 | 283,660 | 32,207 | ||||||||||||||
Derivatives |
80,028 | 11,900 | 73,293 | 12,772 | ||||||||||||||
Financial instruments owned, at fair value |
364,206 | 46,585 | 356,953 | 44,979 | ||||||||||||||
Securities segregated for regulatory and other purposes |
42,014 | | 36,182 | | ||||||||||||||
Securities purchased under agreements to resell |
187,789 | 557 | 188,355 | 100 | ||||||||||||||
Securities borrowed |
47,621 | | 48,822 | | ||||||||||||||
Receivables from customers and counterparties |
9,682 | 795 | 7,202 | 298 | ||||||||||||||
Total |
$ | 651,312 | $ | 47,937 | $ | 637,514 | $ | 45,377 |
Goldman Sachs 2011 Form 10-K | 47 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goodwill and Identifiable Intangible Assets
48 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 49 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Year Ended December | ||||||||||||
$ in millions, except per share amounts | 2011 | 2010 | 2009 | |||||||||
Net revenues |
$ | 28,811 | $ | 39,161 | $ | 45,173 | ||||||
Pre-tax earnings |
6,169 | 12,892 | 19,829 | |||||||||
Net earnings |
4,442 | 8,354 | 13,385 | |||||||||
Net earnings applicable to common shareholders |
2,510 | 7,713 | 12,192 | |||||||||
Diluted earnings per common share |
4.51 | 13.18 | 22.13 | |||||||||
Return on average common shareholders equity 1 |
3.7 | % | 11.5 | % | 22.5 | % | ||||||
Diluted earnings per common share, excluding the impact of the Series G Preferred Stock dividend 2 |
$ | 7.46 | N/A | N/A | ||||||||
Return on average common shareholders equity, excluding the impact of the Series G Preferred Stock dividend 2 |
5.9 | % | N/A | N/A | ||||||||
Diluted earnings per common share, excluding the impact of the U.K. bank payroll tax, the SEC settlement and the NYSE DMM rights impairment 3 |
N/A | $ | 15.22 | N/A | ||||||||
Return on average common shareholders equity, excluding the impact of the U.K. bank payroll tax, the SEC settlement and the NYSE DMM rights impairment 3 |
N/A | 13.1 | % | N/A |
1. | ROE is computed by dividing net earnings applicable to common shareholders by average monthly common shareholders equity. The table below presents our average common shareholders equity. |
Average for the Year Ended December |
||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||
Total shareholders equity |
$ | 72,708 | $ | 74,257 | $ | 65,527 | ||||||
Preferred stock |
(3,990 | ) | (6,957 | ) | (11,363 | ) | ||||||
Common shareholders equity |
$ | 68,718 | $ | 67,300 | $ | 54,164 |
2. | We believe that presenting our results excluding the impact of the $1.64 billion Series G Preferred Stock dividend is meaningful, as it increases the comparability of period-to-period results. Diluted earnings per common share and ROE excluding this item are non-GAAP measures and may not be comparable to similar non-GAAP measures used by other companies. The tables below present the calculation of net earnings applicable to common shareholders, diluted earnings per common share and average common shareholders equity excluding the impact of this dividend. |
in millions, except per share amount | Year Ended December 2011 |
|||
Net earnings applicable to common shareholders |
$2,510 | |||
Impact of the Series G Preferred Stock dividend |
1,643 | |||
Net earnings applicable to common shareholders, excluding the impact of the Series G Preferred Stock dividend |
4,153 | |||
Divided by: average diluted common shares outstanding |
556.9 | |||
Diluted earnings per common share, excluding the impact of the Series G Preferred Stock dividend |
$ 7.46 |
in millions | Average for the Year Ended December 2011 |
|||
Total shareholders equity |
$72,708 | |||
Preferred stock |
(3,990 | ) | ||
Common shareholders equity |
68,718 | |||
Impact of the Series G Preferred Stock dividend |
1,264 | |||
Common shareholders equity, excluding the impact of the Series G Preferred Stock dividend |
$69,982 |
50 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
3. | We believe that presenting our results excluding the impact of the U.K. bank payroll tax, the SEC settlement and the NYSE DMM rights impairment is meaningful, as it increases the comparability of period-to-period results. Diluted earnings per common share and ROE excluding these items are non-GAAP measures and may not be comparable to similar non-GAAP measures used by other companies. The tables below present the calculation of net earnings applicable to common shareholders, diluted earnings per common share and average common shareholders equity excluding the impact of these items. |
in millions, except per share amounts | Year Ended December 2010 |
|||
Net earnings applicable to common shareholders |
$ 7,713 | |||
Impact of the U.K. bank payroll tax |
465 | |||
Pre-tax impact of the SEC settlement |
550 | |||
Tax impact of the SEC settlement |
(6 | ) | ||
Pre-tax impact of the NYSE DMM rights impairment |
305 | |||
Tax impact of the NYSE DMM rights impairment |
(118 | ) | ||
Net earnings applicable to common shareholders, excluding the impact of the U.K. bank payroll tax, the SEC settlement and the NYSE DMM rights impairment |
8,909 | |||
Divided by: average diluted common shares outstanding |
585.3 | |||
Diluted earnings per common share, excluding the impact of the U.K. bank payroll tax, the SEC settlement and the NYSE DMM rights impairment |
$ 15.22 | |||
in millions | Average for the Year Ended December 2010 |
|||
Total shareholders equity |
$74,257 | |||
Preferred stock |
(6,957 | ) | ||
Common shareholders equity |
67,300 | |||
Impact of the U.K. bank payroll tax |
359 | |||
Impact of the SEC settlement |
293 | |||
Impact of the NYSE DMM rights impairment |
14 | |||
Common shareholders equity, excluding the impact of the U.K. bank payroll tax, the SEC settlement and the NYSE DMM rights impairment |
$67,966 |
Goldman Sachs 2011 Form 10-K | 51 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
52 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 53 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
54 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
The table below presents our operating expenses and total staff.
Year Ended December | |||||||||
$ in millions | 2011 | 2010 | 2009 | ||||||
Compensation and benefits |
$12,223 | $15,376 | $16,193 | ||||||
U.K. bank payroll tax |
| 465 | | ||||||
Brokerage, clearing, exchange and distribution fees |
2,463 | 2,281 | 2,298 | ||||||
Market development |
640 | 530 | 342 | ||||||
Communications and technology |
828 | 758 | 709 | ||||||
Depreciation and amortization |
1,865 | 1,889 | 1,734 | ||||||
Occupancy |
1,030 | 1,086 | 950 | ||||||
Professional fees |
992 | 927 | 678 | ||||||
Insurance reserves 1 |
529 | 398 | 334 | ||||||
Other expenses |
2,072 | 2,559 | 2,106 | ||||||
Total non-compensation expenses |
10,419 | 10,428 | 9,151 | ||||||
Total operating expenses |
$22,642 | $26,269 | $25,344 | ||||||
Total staff at period-end 2 |
33,300 | 35,700 | 32,500 | ||||||
Total staff at period-end including consolidated entities held for investment purposes 3 |
34,700 | 38,700 | 36,200 |
1. | Revenues related to our insurance activities are included in Market making on the consolidated statements of earnings. |
2. | Includes employees, consultants and temporary staff. |
3. | Compensation and benefits and non-compensation expenses related to consolidated entities held for investment purposes are included in their respective line items in the consolidated statements of earnings. Consolidated entities held for investment purposes are entities that are held strictly for capital appreciation, have a defined exit strategy and are engaged in activities that are not closely related to our principal businesses. |
1. | We believe that presenting our ratio of compensation and benefits to net revenues excluding the impact of the $465 million U.K. bank payroll tax is meaningful, as excluding it increases the comparability of period-to-period results. The ratio of compensation and benefits to net revenues excluding the impact of this item is a non-GAAP measure and may not be comparable to similar non-GAAP measures used by other companies. The table below presents the calculation of the ratio of compensation and benefits to net revenues including and excluding the impact of this item. |
$ in millions | Year Ended December 2010 |
|||
Compensation and benefits (which excludes the impact of the $465 million U.K. bank payroll tax) |
$15,376 | |||
Ratio of compensation and benefits to net revenues |
39.3 | % | ||
Compensation and benefits, including the impact of the $465 million U.K. bank payroll tax |
$15,841 | |||
Ratio of compensation and benefits to net revenues, including the impact of the $465 million U.K. bank payroll tax |
40.5 | % |
Goldman Sachs 2011 Form 10-K | 55 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
56 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Provision for Taxes
1. | We believe that presenting our effective income tax rate for 2010 excluding the impact of the U.K. bank payroll tax and the SEC settlement, substantially all of which was non-deductible, is meaningful as excluding these items increases the comparability of period-to-period results. The effective income tax rate excluding the impact of these items is a non-GAAP measure and may not be comparable to similar non-GAAP measures used by other companies. The table below presents the calculation of the effective income tax rate excluding the impact of these amounts. |
Year Ended December 2010 | ||||||||||||
$ in millions | Pre-tax earnings |
Provision for taxes |
Effective income tax rate |
|||||||||
As reported |
$12,892 | $4,538 | 35.2 | % | ||||||||
Add back: Impact of the U.K. bank payroll tax |
465 | | ||||||||||
Impact of the SEC settlement |
550 | 6 | ||||||||||
As adjusted |
$13,907 | $4,544 | 32.7 | % |
Goldman Sachs 2011 Form 10-K | 57 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Segment Operating Results
The table below presents the net revenues, operating expenses and pre-tax earnings of our segments.
Year Ended December | ||||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||||
Investment Banking |
Net revenues | $ | 4,355 | $ | 4,810 | $ | 4,984 | |||||||
Operating expenses | 2,962 | 3,511 | 3,482 | |||||||||||
Pre-tax earnings | $ | 1,393 | $ | 1,299 | $ | 1,502 | ||||||||
Institutional Client Services |
Net revenues | $ | 17,280 | $ | 21,796 | $ | 32,719 | |||||||
Operating expenses | 12,697 | 14,291 | 13,691 | |||||||||||
Pre-tax earnings | $ | 4,583 | $ | 7,505 | $ | 19,028 | ||||||||
Investing & Lending |
Net revenues | $ | 2,142 | $ | 7,541 | $ | 2,863 | |||||||
Operating expenses | 2,673 | 3,361 | 3,523 | |||||||||||
Pre-tax earnings/(loss) | $ | (531 | ) | $ | 4,180 | $ | (660 | ) | ||||||
Investment Management |
Net revenues | $ | 5,034 | $ | 5,014 | $ | 4,607 | |||||||
Operating expenses | 4,018 | 4,051 | 3,673 | |||||||||||
Pre-tax earnings | $ | 1,016 | $ | 963 | $ | 934 | ||||||||
Total |
Net revenues | $ | 28,811 | $ | 39,161 | $ | 45,173 | |||||||
Operating expenses | 22,642 | 26,269 | 25,344 | |||||||||||
Pre-tax earnings | $ | 6,169 | $ | 12,892 | $ | 19,829 |
58 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Investment Banking
Goldman Sachs 2011 Form 10-K | 59 |
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Managements Discussion and Analysis
60 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 61 |
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Managements Discussion and Analysis
62 | Goldman Sachs 2011 Form 10-K |
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Goldman Sachs 2011 Form 10-K | 63 |
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64 | Goldman Sachs 2011 Form 10-K |
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Goldman Sachs 2011 Form 10-K | 65 |
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66 | Goldman Sachs 2011 Form 10-K |
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Goldman Sachs 2011 Form 10-K | 67 |
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Managements Discussion and Analysis
68 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 69 |
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Managements Discussion and Analysis
As of December 2011 | ||||||||||||||||||||||||
in millions | Excess Liquidity and Cash 1 |
Secured Client Financing |
Institutional Client Services |
Investing & Lending |
Other Assets |
Total Assets |
||||||||||||||||||
Cash and cash equivalents |
$ | 56,008 | $ | | $ | | $ | | $ | | $ | 56,008 | ||||||||||||
Cash and securities segregated for regulatory and other purposes |
| 64,264 | | | | 64,264 | ||||||||||||||||||
Securities purchased under agreements to resell and federal funds sold |
70,220 | 98,445 | 18,671 | 453 | | 187,789 | ||||||||||||||||||
Securities borrowed |
14,919 | 85,990 | 52,432 | | | 153,341 | ||||||||||||||||||
Receivables from brokers, dealers and clearing organizations |
| 3,252 | 10,612 | 340 | | 14,204 | ||||||||||||||||||
Receivables from customers and counterparties |
| 31,756 | 25,157 | 3,348 | | 60,261 | ||||||||||||||||||
Financial instruments owned, at fair value |
38,322 | | 273,640 | 52,244 | | 364,206 | ||||||||||||||||||
Other assets |
| | | | 23,152 | 23,152 | ||||||||||||||||||
Total assets |
$ | 179,469 | $ | 283,707 | $ | 380,512 | $ | 56,385 | $ | 23,152 | $ | 923,225 | ||||||||||||
As of December 2010 | ||||||||||||||||||||||||
in millions | Excess Liquidity and Cash 1 |
Secured Client Financing |
Institutional Client Services |
Investing & Lending |
Other Assets |
Total Assets |
||||||||||||||||||
Cash and cash equivalents |
$ | 39,788 | $ | | $ | | $ | | $ | | $ | 39,788 | ||||||||||||
Cash and securities segregated for regulatory and other purposes |
| 53,731 | | | | 53,731 | ||||||||||||||||||
Securities purchased under agreements to resell and federal funds sold |
62,854 | 102,537 | 22,866 | 98 | | 188,355 | ||||||||||||||||||
Securities borrowed |
37,938 | 80,313 | 48,055 | | | 166,306 | ||||||||||||||||||
Receivables from brokers, dealers and clearing organizations |
| 3,702 | 6,698 | 37 | | 10,437 | ||||||||||||||||||
Receivables from customers and counterparties |
| 39,008 | 25,698 | 2,997 | | 67,703 | ||||||||||||||||||
Financial instruments owned, at fair value |
41,761 | | 260,406 | 54,786 | | 356,953 | ||||||||||||||||||
Other assets |
| | | | 28,059 | 28,059 | ||||||||||||||||||
Total assets |
$ | 182,341 | $ | 279,291 | $ | 363,723 | $ | 57,918 | $ | 28,059 | $ | 911,332 |
1. | Includes unencumbered cash, U.S. government and federal agency obligations (including highly liquid U.S. federal agency mortgage-backed obligations), and German, French, Japanese and United Kingdom government obligations. |
70 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 71 |
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Managements Discussion and Analysis
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 73 |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 75 |
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Managements Discussion and Analysis
76 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 77 |
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Managements Discussion and Analysis
78 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 79 |
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Managements Discussion and Analysis
Type of Off-Balance-Sheet Arrangement | Disclosure in Form 10-K | |
Variable interests and other obligations, including contingent obligations, arising from variable interests in nonconsolidated VIEs | See Note 11 to the consolidated financial statements in Part II, Item 8 of this Form 10-K. | |
Leases, letters of credit, and lending and other commitments | See below and Note 18 to the consolidated financial statements in Part II, Item 8 of this Form 10-K. | |
Guarantees | See below and Note 18 to the consolidated financial statements in Part II, Item 8 of this Form 10-K. | |
Derivatives | See Notes 4, 5, 7 and 18 to the consolidated financial statements in Part II, Item 8 of this Form 10-K. |
80 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Contractual Obligations
in millions | 2012 | 2013-2014 | 2015-2016 | 2017- Thereafter |
Total | |||||||||||||||
Amounts related to on-balance-sheet obligations |
||||||||||||||||||||
Time deposits 1 |
$ | | $ | 4,558 | $ | 1,754 | $ | 2,120 | $ | 8,432 | ||||||||||
Secured long-term financings 2 |
| 5,479 | 1,020 | 1,680 | 8,179 | |||||||||||||||
Unsecured long-term borrowings 3 |
| 45,548 | 42,520 | 85,477 | 173,545 | |||||||||||||||
Contractual interest payments 4 |
6,892 | 12,603 | 9,617 | 33,784 | 62,896 | |||||||||||||||
Insurance liabilities 5 |
1,211 | 2,191 | 1,823 | 18,118 | 23,343 | |||||||||||||||
Subordinated liabilities issued by consolidated VIEs |
47 | 36 | | 1,007 | 1,090 | |||||||||||||||
Amounts related to off-balance-sheet arrangements |
||||||||||||||||||||
Commitments to extend credit |
12,172 | 14,685 | 37,692 | 1,196 | 65,745 | |||||||||||||||
Contingent and forward starting resale and securities borrowing agreements |
54,522 | | | | 54,522 | |||||||||||||||
Forward starting repurchase and secured lending agreements |
17,964 | | | | 17,964 | |||||||||||||||
Letters of credit |
1,145 | 58 | 145 | 5 | 1,353 | |||||||||||||||
Investment commitments |
2,455 | 4,764 | 439 | 1,460 | 9,118 | |||||||||||||||
Other commitments |
5,200 | 101 | 34 | 7 | 5,342 | |||||||||||||||
Minimum rental payments |
440 | 805 | 638 | 1,380 | 3,263 | |||||||||||||||
Derivative guarantees |
486,244 | 206,853 | 53,743 | 49,576 | 796,416 | |||||||||||||||
Securities lending indemnifications |
27,798 | | | | 27,798 | |||||||||||||||
Other financial guarantees |
625 | 795 | 1,209 | 939 | 3,568 |
1. | Excludes $4.83 billion of time deposits maturing within one year. |
2. | The aggregate contractual principal amount of secured long-term financings for which the fair value option was elected, primarily consisting of transfers of financial assets accounted for as financings rather than sales and certain other nonrecourse financings, exceeded their related fair value by $239 million. |
3. | Includes $10.84 billion related to interest rate hedges on certain unsecured long-term borrowings. In addition, the aggregate contractual principal amount of unsecured long-term borrowings (principal and non-principal protected) for which the fair value option was elected exceeded the related fair value by $693 million. |
4. | Represents estimated future interest payments related to unsecured long-term borrowings, secured long-term financings and time deposits based on applicable interest rates as of December 2011. Includes stated coupons, if any, on structured notes. |
5. | Represents estimated undiscounted payments related to future benefits and unpaid claims arising from policies associated with our insurance activities, excluding separate accounts and estimated recoveries under reinsurance contracts. |
Goldman Sachs 2011 Form 10-K | 81 |
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Managements Discussion and Analysis
82 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 83 |
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Managements Discussion and Analysis
84 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 85 |
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Managements Discussion and Analysis
86 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 87 |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 89 |
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90 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Credit Ratings
The table below presents our unsecured credit ratings (excluding debt guaranteed by the FDIC under the TLGP) and outlook.
As of December 2011 | ||||||||||||||||||||||||
|
Short-Term Debt |
|
|
Long-Term Debt |
|
|
Subordinated Debt |
|
|
Trust Preferred |
1 |
|
Preferred Stock |
2 |
|
Rating Outlook |
| |||||||
DBRS, Inc. |
R-1 (middle | ) | A (high | ) | A | A | BBB | Stable | 8 | |||||||||||||||
Fitch, Inc. 3, 4 |
F1 | A | A- | BBB+ | BBB+ | Stable | 9 | |||||||||||||||||
Moodys Investors Service 5 |
P-1 | A1 | A2 | A3 | Baa2 | Negative | 10 | |||||||||||||||||
Standard & Poors Ratings Services 6, 7 |
A-2 | A- | BBB+ | BB+ | BB+ | Negative | 10 | |||||||||||||||||
Rating and Investment Information, Inc. |
a-1+ | AA- | A+ | N/A | N/A | Negative | 11 |
1. | Trust preferred securities issued by Goldman Sachs Capital I. |
2. | Includes Group Inc.s non-cumulative preferred stock and the Normal Automatic Preferred Enhanced Capital Securities (APEX) issued by Goldman Sachs Capital II and Goldman Sachs Capital III. |
3. | GS Bank USA has been assigned a rating of A+ for long-term bank deposits, F1 for short-term bank deposits and A as a long-term issuer. |
4. | GS&Co. has been assigned a rating of F1 as a short-term issuer and A as a long-term issuer. |
5. | GS Bank USA has been assigned a rating of Aa3 for long-term bank deposits, P-1 for short-term bank deposits and Aa3 as a long-term issuer. |
6. | GS&Co. has been assigned a rating of A-1 as a short-term issuer and A as a long-term issuer. |
7. | GSI has been assigned a rating of A-1 as a short-term issuer and A as a long-term issuer. |
8. | Applies to long-term and short-term ratings. |
9. | Applies to long-term issuer default ratings. |
10. | Applies to long-term ratings. |
11. | Applies to issuer rating. |
Goldman Sachs 2011 Form 10-K | 91 |
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Managements Discussion and Analysis
92 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 93 |
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Managements Discussion and Analysis
94 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 95 |
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Managements Discussion and Analysis
The chart below reflects the VaR over the last four quarters.
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THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 97 |
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98 | Goldman Sachs 2011 Form 10-K |
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Goldman Sachs 2011 Form 10-K | 99 |
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As of December 2011 | ||||||||||||||||||||||||||||
in millions Credit Rating Equivalent |
0 - 12 Months |
1 - 5 Years |
5 Years or Greater |
Total | Netting | Exposure | Exposure Net of Collateral |
|||||||||||||||||||||
AAA/Aaa |
$ | 727 | $ | 786 | $ 2,297 | $ | 3,810 | $ | (729 | ) | $ 3,081 | $ 2,770 | ||||||||||||||||
AA/Aa2 |
4,661 | 10,198 | 28,094 | 42,953 | (22,972 | ) | 19,981 | 12,954 | ||||||||||||||||||||
A/A2 |
17,704 | 36,553 | 50,787 | 105,044 | (73,873 | ) | 31,171 | 17,109 | ||||||||||||||||||||
BBB/Baa2 |
7,376 | 14,222 | 25,612 | 47,210 | (36,214 | ) | 10,996 | 6,895 | ||||||||||||||||||||
BB/Ba2 or lower |
2,896 | 4,497 | 6,597 | 13,990 | (6,729 | ) | 7,261 | 4,527 | ||||||||||||||||||||
Unrated |
752 | 664 | 391 | 1,807 | (149 | ) | 1,658 | 1,064 | ||||||||||||||||||||
Total |
$ | 34,116 | $ | 66,920 | $113,778 | $ | 214,814 | $ | (140,666 | ) | $74,148 | $45,319 |
As of December 2010 | ||||||||||||||||||||||||||||
in millions Credit Rating Equivalent |
0 - 12 Months |
1 - 5 Years |
5 Years or Greater |
Total | Netting | Exposure | Exposure Net of Collateral |
|||||||||||||||||||||
AAA/Aaa |
$ | 504 | $ | 728 | $ 2,597 | $ | 3,829 | $ | (491 | ) | $ 3,338 | $ 3,088 | ||||||||||||||||
AA/Aa2 |
5,234 | 8,875 | 15,579 | 29,688 | (18,167 | ) | 11,521 | 6,935 | ||||||||||||||||||||
A/A2 |
13,556 | 38,522 | 49,568 | 101,646 | (74,650 | ) | 26,996 | 16,839 | ||||||||||||||||||||
BBB/Baa2 |
3,818 | 18,062 | 19,625 | 41,505 | (27,832 | ) | 13,673 | 8,182 | ||||||||||||||||||||
BB/Ba2 or lower |
3,583 | 5,382 | 3,650 | 12,615 | (4,553 | ) | 8,062 | 5,439 | ||||||||||||||||||||
Unrated |
709 | 1,081 | 332 | 2,122 | (20 | ) | 2,102 | 1,539 | ||||||||||||||||||||
Total |
$ | 27,404 | $ | 72,650 | $91,351 | $ | 191,405 | $ | (125,713 | ) | $65,692 | $42,022 |
100 | Goldman Sachs 2011 Form 10-K |
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Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 101 |
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Managements Discussion and Analysis
Credit Exposure by Industry
Cash | OTC Derivatives | Loans and
Lending Commitments 1 |
||||||||||||||||||||||||
As of December | As of December | As of December | ||||||||||||||||||||||||
in millions | 2011 | 2010 | 2011 | 2010 | 2011 | 2010 | ||||||||||||||||||||
Asset Managers & Funds |
$ | 64 | $ | | $ | 10,582 | $ | 8,760 | $ | 1,290 | $ | 1,317 | ||||||||||||||
Banks, Brokers & Other Financial Institutions |
12,535 | 11,020 | 25,041 | 23,255 | 3,591 | 3,485 | ||||||||||||||||||||
Consumer Products, Non-Durables, and Retail |
11 | | 1,031 | 1,082 | 12,685 | 8,141 | ||||||||||||||||||||
Government & Central Banks |
43,389 | 28,766 | 16,642 | 11,705 | 1,828 | 1,370 | ||||||||||||||||||||
Healthcare & Education |
| | 2,962 | 2,161 | 7,158 | 5,754 | ||||||||||||||||||||
Insurance |
| 1 | 2,828 | 2,462 | 2,891 | 3,054 | ||||||||||||||||||||
Natural Resources & Utilities |
| | 4,803 | 5,259 | 14,795 | 11,021 | ||||||||||||||||||||
Real Estate |
| | 327 | 528 | 2,695 | 1,523 | ||||||||||||||||||||
Technology, Media, Telecommunications & Services |
2 | 1 | 2,124 | 1,694 | 12,646 | 7,690 | ||||||||||||||||||||
Transportation |
| | 1,104 | 962 | 5,753 | 3,822 | ||||||||||||||||||||
Other |
7 | | 6,704 | 7,824 | 5,759 | 6,007 | ||||||||||||||||||||
Total 2 |
$ | 56,008 | $ | 39,788 | $ | 74,148 | $ | 65,692 | $ | 71,091 | $ | 53,184 |
Credit Exposure by Region
Cash | OTC Derivatives | Loans and
Lending Commitments 1 |
||||||||||||||||||||||||
As of December | As of December | As of December | ||||||||||||||||||||||||
in millions | 2011 | 2010 | 2011 | 2010 | 2011 | 2010 | ||||||||||||||||||||
Americas |
$ | 48,543 | $ | 34,528 | $ | 36,591 | $ | 34,468 | $ | 52,755 | $ | 38,151 | ||||||||||||||
EMEA 3 |
1,800 | 810 | 29,549 | 23,396 | 16,989 | 14,451 | ||||||||||||||||||||
Asia |
5,665 | 4,450 | 8,008 | 7,828 | 1,347 | 582 | ||||||||||||||||||||
Total 2 |
$ | 56,008 | $ | 39,788 | $ | 74,148 | $ | 65,692 | $ | 71,091 | $ | 53,184 |
Credit Exposure by Credit Quality
Cash | OTC Derivatives | Loans and
Lending Commitments 1 |
||||||||||||||||||||||||
As of December | As of December | As of December | ||||||||||||||||||||||||
in millions | 2011 | 2010 | 2011 | 2010 | 2011 | 2010 | ||||||||||||||||||||
Credit Rating Equivalent |
||||||||||||||||||||||||||
AAA/Aaa |
$ | 40,559 | $ | 27,851 | $ | 3,081 | $ | 3,338 | $ | 2,192 | $ | 1,783 | ||||||||||||||
AA/Aa2 |
7,463 | 4,547 | 19,981 | 11,521 | 7,026 | 5,273 | ||||||||||||||||||||
A/A2 |
6,464 | 5,603 | 31,171 | 26,996 | 21,055 | 15,766 | ||||||||||||||||||||
BBB/Baa2 |
195 | 1,007 | 10,996 | 13,673 | 22,937 | 17,544 | ||||||||||||||||||||
BB/Ba2 or lower |
1,209 | 764 | 7,261 | 8,062 | 17,820 | 12,774 | ||||||||||||||||||||
Unrated |
118 | 16 | 1,658 | 2,102 | 61 | 44 | ||||||||||||||||||||
Total 2 |
$ | 56,008 | $ | 39,788 | $ | 74,148 | $ | 65,692 | $ | 71,091 | $ | 53,184 |
1. | Includes approximately $10 billion and $4 billion of loans as of December 2011 and December 2010, respectively, and approximately $61 billion and $49 billion of lending commitments as of December 2011 and December 2010, respectively. Excludes approximately $10 billion and $14 billion of loans as of December 2011 and December 2010, respectively, and lending commitments with a total notional value of approximately $5 billion and $3 billion as of December 2011 and December 2010, respectively, that are risk managed as part of market risk using VaR and sensitivity measures. |
2. | The firm bears credit risk related to resale agreements and securities borrowed only to the extent that cash advanced to the counterparty exceeds the value of the collateral received. The firm also has credit exposure on repurchase agreements and securities loaned to the extent that the value of securities pledged or delivered to the counterparty for these transactions exceeds the amount of cash or collateral received. We had approximately $41 billion and $31 billion as of December 2011 and December 2010, respectively, in credit exposure related to securities financing transactions reflecting enforceable netting agreements. |
3. | EMEA (Europe, Middle East and Africa). |
102 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Selected Country Exposures
As of December 2011 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Credit Exposure | Market Exposure | |||||||||||||||||||||||||||||||||||||||||||||||||
in billions | Loans | OTC Derivatives |
Other | Gross Funded |
Hedges | Total Net Funded Exposure |
Unfunded Credit |
Total Credit Exposure |
Bonds | Equities Other |
Credit Derivatives |
Total Market Exposure |
||||||||||||||||||||||||||||||||||||||
Greece |
||||||||||||||||||||||||||||||||||||||||||||||||||
Sovereign |
$ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | 0.33 | $ | | $ | (0.02 | ) | $ | 0.31 | |||||||||||||||||||||||||
Non-Sovereign |
0.02 | 0.05 | | 0.07 | | 0.07 | | 0.07 | 0.03 | 0.01 | 0.02 | 0.06 | ||||||||||||||||||||||||||||||||||||||
Total Greece |
0.02 | 0.05 | | 0.07 | | 0.07 | | 0.07 | 0.36 | 0.01 | | 0.37 | ||||||||||||||||||||||||||||||||||||||
Ireland |
||||||||||||||||||||||||||||||||||||||||||||||||||
Sovereign |
| | 0.25 | 0.25 | | 0.25 | | 0.25 | 0.41 | | (0.35 | ) | 0.06 | |||||||||||||||||||||||||||||||||||||
Non-Sovereign |
| 0.54 | 0.07 | 0.61 | (0.01 | ) | 0.60 | 0.06 | 0.66 | 0.41 | 0.09 | 0.11 | 0.61 | |||||||||||||||||||||||||||||||||||||
Total Ireland |
| 0.54 | 0.32 | 0.86 | (0.01 | ) | 0.85 | 0.06 | 0.91 | 0.82 | 0.09 | (0.24 | ) | 0.67 | ||||||||||||||||||||||||||||||||||||
Italy |
||||||||||||||||||||||||||||||||||||||||||||||||||
Sovereign |
| 1.67 | | 1.67 | (1.41 | ) | 0.26 | | 0.26 | 0.21 | | 0.20 | 0.41 | |||||||||||||||||||||||||||||||||||||
Non-Sovereign |
0.13 | 0.45 | | 0.58 | (0.02 | ) | 0.56 | 0.40 | 0.96 | 0.19 | 0.30 | (0.90 | ) | (0.41 | ) | |||||||||||||||||||||||||||||||||||
Total Italy |
0.13 | 2.12 | | 2.25 | (1.43 | ) | 0.82 | 0.40 | 1.22 | 0.40 | 0.30 | (0.70 | ) | | ||||||||||||||||||||||||||||||||||||
Portugal |
||||||||||||||||||||||||||||||||||||||||||||||||||
Sovereign |
| 0.15 | | 0.15 | | 0.15 | | 0.15 | (0.10 | ) | | 0.02 | (0.08 | ) | ||||||||||||||||||||||||||||||||||||
Non-Sovereign |
| 0.06 | | 0.06 | | 0.06 | | 0.06 | 0.23 | 0.01 | (0.18 | ) | 0.06 | |||||||||||||||||||||||||||||||||||||
Total Portugal |
| 0.21 | | 0.21 | | 0.21 | | 0.21 | 0.13 | 0.01 | (0.16 | ) | (0.02 | ) | ||||||||||||||||||||||||||||||||||||
Spain |
||||||||||||||||||||||||||||||||||||||||||||||||||
Sovereign |
| 0.09 | | 0.09 | | 0.09 | | 0.09 | 0.15 | | (0.55 | ) | (0.40 | ) | ||||||||||||||||||||||||||||||||||||
Non-Sovereign |
0.15 | 0.25 | 0.02 | 0.42 | (0.14 | ) | 0.28 | 0.15 | 0.43 | 0.35 | 0.24 | (0.63 | ) | (0.04 | ) | |||||||||||||||||||||||||||||||||||
Total Spain |
0.15 | 0.34 | 0.02 | 0.51 | (0.14 | ) | 0.37 | 0.15 | 0.52 | 0.50 | 0.24 | (1.18 | ) | (0.44 | ) | |||||||||||||||||||||||||||||||||||
Subtotal |
$ | 0.30 | $ | 3.26 | 1 | $ | 0.34 | $ | 3.90 | 1 | $ | (1.58 | ) | $ | 2.32 | $ | 0.61 | $ | 2.93 | $ | 2.21 | $ | 0.65 | $ | (2.28 | ) 2 | $ | 0.58 |
1. | Includes the benefit of $6.5 billion of cash and U.S. Treasury securities collateral and excludes non-U.S. government and corporate securities collateral of $341 million. |
2. | Includes written and purchased credit derivative notionals reduced by the fair values of such credit derivatives. |
Goldman Sachs 2011 Form 10-K | 103 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
104 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
Goldman Sachs 2011 Form 10-K | 105 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Managements Discussion and Analysis
106 | Goldman Sachs 2011 Form 10-K |
Item 8. Financial Statements and Supplementary Data
Goldman Sachs 2011 Form 10-K | 107 |
Managements Report on Internal Control over Financial Reporting
108 | Goldman Sachs 2011 Form 10-K |
Report of Independent Registered Public Accounting Firm
To the Board of Directors and the Shareholders of
The Goldman Sachs Group, Inc.:
Goldman Sachs 2011 Form 10-K | 109 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Consolidated Statements of Earnings
Year Ended December | ||||||||||||
in millions, except per share amounts | 2011 | 2010 | 2009 | |||||||||
Revenues Investment banking |
$ | 4,361 | $ | 4,810 | $ | 4,984 | ||||||
Investment management |
4,691 | 4,669 | 4,233 | |||||||||
Commissions and fees |
3,773 | 3,569 | 3,840 | |||||||||
Market making |
9,287 | 13,678 | 22,088 | |||||||||
Other principal transactions |
1,507 | 6,932 | 2,621 | |||||||||
Total non-interest revenues |
23,619 | 33,658 | 37,766 | |||||||||
Interest income |
13,174 | 12,309 | 13,907 | |||||||||
Interest expense |
7,982 | 6,806 | 6,500 | |||||||||
Net interest income |
5,192 | 5,503 | 7,407 | |||||||||
Net revenues, including net interest income |
28,811 | 39,161 | 45,173 | |||||||||
Operating expenses Compensation and benefits |
12,223 | 15,376 | 16,193 | |||||||||
U.K. bank payroll tax |
| 465 | | |||||||||
Brokerage, clearing, exchange and distribution fees |
2,463 | 2,281 | 2,298 | |||||||||
Market development |
640 | 530 | 342 | |||||||||
Communications and technology |
828 | 758 | 709 | |||||||||
Depreciation and amortization |
1,865 | 1,889 | 1,734 | |||||||||
Occupancy |
1,030 | 1,086 | 950 | |||||||||
Professional fees |
992 | 927 | 678 | |||||||||
Insurance reserves |
529 | 398 | 334 | |||||||||
Other expenses |
2,072 | 2,559 | 2,106 | |||||||||
Total non-compensation expenses |
10,419 | 10,428 | 9,151 | |||||||||
Total operating expenses |
22,642 | 26,269 | 25,344 | |||||||||
Pre-tax earnings |
6,169 | 12,892 | 19,829 | |||||||||
Provision for taxes |
1,727 | 4,538 | 6,444 | |||||||||
Net earnings |
4,442 | 8,354 | 13,385 | |||||||||
Preferred stock dividends |
1,932 | 641 | 1,193 | |||||||||
Net earnings applicable to common shareholders |
$ | 2,510 | $ | 7,713 | $ | 12,192 | ||||||
Earnings per common share |
||||||||||||
Basic |
$ | 4.71 | $ | 14.15 | $ | 23.74 | ||||||
Diluted |
4.51 | 13.18 | 22.13 | |||||||||
Average common shares outstanding |
||||||||||||
Basic |
524.6 | 542.0 | 512.3 | |||||||||
Diluted |
556.9 | 585.3 | 550.9 |
The accompanying notes are an integral part of these consolidated financial statements.
110 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Consolidated Statements of Financial Condition
As of December | ||||||||
in millions, except share and per share amounts | 2011 | 2010 | ||||||
Assets Cash and cash equivalents |
$ | 56,008 | $ | 39,788 | ||||
Cash and securities segregated for regulatory and other purposes (includes $42,014 and $36,182 at fair value as of December 2011 and December 2010, respectively) |
64,264 | 53,731 | ||||||
Collateralized agreements: Securities purchased under agreements to resell and federal funds sold (includes $187,789 and $188,355 at fair value as of December 2011 and December 2010, respectively) |
187,789 | 188,355 | ||||||
Securities borrowed (includes $47,621 and $48,822 at fair value as of December 2011 and December 2010, respectively) |
153,341 | 166,306 | ||||||
Receivables from brokers, dealers and clearing organizations |
14,204 | 10,437 | ||||||
Receivables from customers and counterparties (includes $9,682 and $7,202 at fair value as of December 2011 and December 2010, respectively) |
60,261 | 67,703 | ||||||
Financial instruments owned, at fair value (includes $53,989 and $51,010 pledged as collateral as of December 2011 and December 2010, respectively) |
364,206 | 356,953 | ||||||
Other assets |
23,152 | 28,059 | ||||||
Total assets |
$ | 923,225 | $ | 911,332 | ||||
Liabilities and shareholders equity Deposits (includes $4,526 and $1,975 at fair value as of December 2011 and December 2010, respectively) |
$ | 46,109 | $ | 38,569 | ||||
Collateralized financings: Securities sold under agreements to repurchase, at fair value |
164,502 | 162,345 | ||||||
Securities loaned (includes $107 and $1,514 at fair value as of December 2011 and December 2010, respectively) |
7,182 | 11,212 | ||||||
Other secured financings (includes $30,019 and $31,794 at fair value as of December 2011 and December 2010, respectively) |
37,364 | 38,377 | ||||||
Payables to brokers, dealers and clearing organizations |
3,667 | 3,234 | ||||||
Payables to customers and counterparties |
194,625 | 187,270 | ||||||
Financial instruments sold, but not yet purchased, at fair value |
145,013 | 140,717 | ||||||
Unsecured short-term borrowings, including the current portion of unsecured long-term borrowings (includes $17,854 and $22,116 at fair value as of December 2011 and December 2010, respectively) |
49,038 | 47,842 | ||||||
Unsecured long-term borrowings (includes $17,162 and $18,171 at fair value as of December 2011
and |
173,545 | 174,399 | ||||||
Other liabilities and accrued expenses (includes $9,486 and $2,972 at fair value as of December 2011 and December 2010, respectively) |
31,801 | 30,011 | ||||||
Total liabilities |
852,846 | 833,976 | ||||||
Commitments, contingencies and guarantees Shareholders equity Preferred stock, par value $0.01 per share; aggregate liquidation preference of $3,100 and $8,100 as of December 2011 and December 2010, respectively |
3,100 | 6,957 | ||||||
Common stock, par value $0.01 per share; 4,000,000,000 shares authorized, 795,555,310 and 770,949,268 shares issued as of December 2011 and December 2010, respectively, and 485,467,565 and 507,530,772 shares outstanding as of December 2011 and December 2010, respectively |
8 | 8 | ||||||
Restricted stock units and employee stock options |
5,681 | 7,706 | ||||||
Nonvoting common stock, par value $0.01 per share; 200,000,000 shares authorized, no shares issued and outstanding |
| | ||||||
Additional paid-in capital |
45,553 | 42,103 | ||||||
Retained earnings |
58,834 | 57,163 | ||||||
Accumulated other comprehensive loss |
(516 | ) | (286 | ) | ||||
Stock held in treasury, at cost, par value $0.01 per share; 310,087,747 and 263,418,498 shares as of December 2011 and December 2010, respectively |
(42,281 | ) | (36,295 | ) | ||||
Total shareholders equity |
70,379 | 77,356 | ||||||
Total liabilities and shareholders equity |
$ | 923,225 | $ | 911,332 |
The accompanying notes are an integral part of these consolidated financial statements.
Goldman Sachs 2011 Form 10-K | 111 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Consolidated Statements of Changes in Shareholders Equity
Year Ended December | ||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||
Preferred stock Balance, beginning of year |
$ | 6,957 | $ | 6,957 | $ | 16,483 | ||||||
Accretion |
| | 48 | |||||||||
Repurchased |
(3,857 | ) | | (9,574 | ) | |||||||
Balance, end of year |
3,100 | 6,957 | 6,957 | |||||||||
Common stock Balance, beginning of year |
8 | 8 | 7 | |||||||||
Issued |
| | 1 | |||||||||
Balance, end of year |
8 | 8 | 8 | |||||||||
Restricted stock units and employee stock options Balance, beginning of year |
7,706 | 6,245 | 9,463 | |||||||||
Issuance and amortization of restricted stock units and employee stock options |
2,863 | 4,137 | 2,064 | |||||||||
Delivery of common stock underlying restricted stock units |
(4,791 | ) | (2,521 | ) | (5,206 | ) | ||||||
Forfeiture of restricted stock units and employee stock options |
(93 | ) | (149 | ) | (73 | ) | ||||||
Exercise of employee stock options |
(4 | ) | (6 | ) | (3 | ) | ||||||
Balance, end of year |
5,681 | 7,706 | 6,245 | |||||||||
Additional paid-in capital Balance, beginning of year |
42,103 | 39,770 | 31,070 | |||||||||
Issuance of common stock |
103 | | 5,750 | |||||||||
Repurchase of common stock warrants |
| | (1,100 | ) | ||||||||
Delivery of common stock underlying share-based awards |
5,160 | 3,067 | 5,708 | |||||||||
Cancellation of restricted stock units in satisfaction of withholding tax requirements |
(1,911 | ) | (972 | ) | (863 | ) | ||||||
Excess net tax benefit/(provision) related to share-based awards |
138 | 239 | (793 | ) | ||||||||
Cash settlement of share-based compensation |
(40 | ) | (1 | ) | (2 | ) | ||||||
Balance, end of year |
45,553 | 42,103 | 39,770 | |||||||||
Retained earnings Balance, beginning of year |
57,163 | 50,252 | 38,579 | |||||||||
Net earnings |
4,442 | 8,354 | 13,385 | |||||||||
Dividends and dividend equivalents declared on common stock and restricted stock units |
(769 | ) | (802 | ) | (588 | ) | ||||||
Dividends on preferred stock |
(2,002 | ) | (641 | ) | (1,076 | ) | ||||||
Preferred stock accretion |
| | (48 | ) | ||||||||
Balance, end of year |
58,834 | 57,163 | 50,252 | |||||||||
Accumulated other comprehensive income/(loss) Balance, beginning of year |
(286 | ) | (362 | ) | (372 | ) | ||||||
Currency translation adjustment, net of tax |
(55 | ) | (38 | ) | (70 | ) | ||||||
Pension and postretirement liability adjustments, net of tax |
(145 | ) | 88 | (17 | ) | |||||||
Net unrealized gains/(losses) on available-for-sale securities, net of tax |
(30 | ) | 26 | 97 | ||||||||
Balance, end of year |
(516 | ) | (286 | ) | (362 | ) | ||||||
Stock held in treasury, at cost Balance, beginning of year |
(36,295 | ) | (32,156 | ) | (32,176 | ) | ||||||
Repurchased |
(6,051 | ) | (4,185 | ) | (2 | ) 1 | ||||||
Reissued |
65 | 46 | 22 | |||||||||
Balance, end of year |
(42,281 | ) | (36,295 | ) | (32,156 | ) | ||||||
Total shareholders equity |
$ | 70,379 | $ | 77,356 | $ | 70,714 |
1. | Relates primarily to repurchases of common stock by a broker-dealer subsidiary to facilitate customer transactions in the ordinary course of business and shares withheld to satisfy withholding tax requirements. |
The accompanying notes are an integral part of these consolidated financial statements.
112 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
Year Ended December | ||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||
Cash flows from operating activities Net earnings |
$ | 4,442 | $ | 8,354 | $ | 13,385 | ||||||
Non-cash items included in net earnings Depreciation and amortization |
1,869 | 1,904 | 1,943 | |||||||||
Deferred income taxes |
726 | 1,339 | (431 | ) | ||||||||
Share-based compensation |
2,849 | 4,035 | 2,009 | |||||||||
Changes in operating assets and liabilities Cash and securities segregated for regulatory and other purposes |
(10,532 | ) | (17,094 | ) | 76,531 | |||||||
Net receivables from brokers, dealers and clearing organizations |
(3,780 | ) | 201 | 6,265 | ||||||||
Net payables to customers and counterparties |
13,027 | (5,437 | ) | (47,414 | ) | |||||||
Securities borrowed, net of securities loaned |
8,940 | 19,638 | 7,033 | |||||||||
Securities sold under agreements to repurchase, net of securities purchased under agreements to resell and federal funds sold |
122 | (10,092 | ) | (146,807 | ) | |||||||
Financial instruments owned, at fair value |
5,085 | (9,231 | ) | 186,295 | ||||||||
Financial instruments sold, but not yet purchased, at fair value |
4,243 | 11,602 | (57,010 | ) | ||||||||
Other, net |
(5,346 | ) | (11,376 | ) | 7,076 | |||||||
Net cash provided by/(used for) operating activities |
21,645 | (6,157 | ) | 48,875 | ||||||||
Cash flows from investing activities Purchase of property, leasehold improvements and equipment |
(1,184 | ) | (1,227 | ) | (1,556 | ) | ||||||
Proceeds from sales of property, leasehold improvements and equipment |
78 | 72 | 82 | |||||||||
Business acquisitions, net of cash acquired |
(431 | ) | (804 | ) | (221 | ) | ||||||
Proceeds from sales of investments |
2,645 | 1,371 | 303 | |||||||||
Purchase of available-for-sale securities |
(2,752 | ) | (1,885 | ) | (2,722 | ) | ||||||
Proceeds from sales of available-for-sale securities |
3,129 | 2,288 | 2,553 | |||||||||
Net cash provided by/(used for) investing activities |
1,485 | (185 | ) | (1,561 | ) | |||||||
Cash flows from financing activities Unsecured short-term borrowings, net |
(3,780 | ) | 1,196 | (9,790 | ) | |||||||
Other secured financings (short-term), net |
(1,195 | ) | 12,689 | (10,451 | ) | |||||||
Proceeds from issuance of other secured financings (long-term) |
9,809 | 5,500 | 4,767 | |||||||||
Repayment of other secured financings (long-term), including the current portion |
(8,878 | ) | (4,849 | ) | (6,667 | ) | ||||||
Proceeds from issuance of unsecured long-term borrowings |
29,169 | 20,231 | 25,363 | |||||||||
Repayment of unsecured long-term borrowings, including the current portion |
(29,187 | ) | (22,607 | ) | (29,018 | ) | ||||||
Repurchase of common stock warrants |
| | (1,100 | ) | ||||||||
Derivative contracts with a financing element, net |
1,602 | 1,222 | 2,168 | |||||||||
Deposits, net |
7,540 | (849 | ) | 7,288 | ||||||||
Preferred stock repurchased |
(3,857 | ) | | (9,574 | ) | |||||||
Common stock repurchased |
(6,048 | ) | (4,183 | ) | (2 | ) | ||||||
Dividends and dividend equivalents paid on common stock, preferred stock and restricted stock units |
(2,771 | ) | (1,443 | ) | (2,205 | ) | ||||||
Proceeds from issuance of common stock, including stock option exercises |
368 | 581 | 6,260 | |||||||||
Excess tax benefit related to share-based compensation |
358 | 352 | 135 | |||||||||
Cash settlement of share-based compensation |
(40 | ) | (1 | ) | (2 | ) | ||||||
Net cash provided by/(used for) financing activities |
(6,910 | ) | 7,839 | (22,828 | ) | |||||||
Net increase in cash and cash equivalents |
16,220 | 1,497 | 24,486 | |||||||||
Cash and cash equivalents, beginning of year |
39,788 | 38,291 | 13,805 | |||||||||
Cash and cash equivalents, end of year |
$ | 56,008 | $ | 39,788 | $ | 38,291 |
SUPPLEMENTAL DISCLOSURES:
Cash payments for interest, net of capitalized interest, were $8.05 billion, $6.74 billion and $7.32 billion for the years ended December 2011, December 2010 and December 2009, respectively.
Cash payments for income taxes, net of refunds, were $1.78 billion, $4.48 billion and $4.78 billion for the years ended December 2011, December 2010 and December 2009, respectively.
Non-cash activities:
During the year ended December 2011, the firm assumed $2.09 billion of debt and issued $103 million of common stock in connection with the acquisition of Goldman Sachs Australia Pty Ltd (GS Australia), formerly Goldman Sachs & Partners Australia Group Holdings Pty Ltd. During the years ended December 2010 and December 2009, the firm assumed $90 million and $16 million, respectively, of debt in connection with business acquisitions. In addition, in the first quarter of 2010, the firm recorded an increase of approximately $3 billion in both assets (primarily financial instruments owned, at fair value) and liabilities (primarily unsecured short-term borrowings and other liabilities) upon adoption of Accounting Standards Update (ASU) No. 2009-17, Consolidations (Topic 810) Improvements to Financial Reporting by Enterprises Involved with Variable Interest Entities.
The accompanying notes are an integral part of these consolidated financial statements.
Goldman Sachs 2011 Form 10-K | 113 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Consolidated Statements of Comprehensive Income
Year Ended December | ||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||
Net earnings |
$ | 4,442 | $ | 8,354 | $ | 13,385 | ||||||
Currency translation adjustment, net of tax |
(55 | ) | (38 | ) | (70 | ) | ||||||
Pension and postretirement liability adjustments, net of tax |
(145 | ) | 88 | (17 | ) | |||||||
Net unrealized gains/(losses) on available-for-sale securities, net of tax |
(30 | ) | 26 | 97 | ||||||||
Comprehensive income |
$ | 4,212 | $ | 8,430 | $ | 13,395 |
The accompanying notes are an integral part of these consolidated financial statements.
114 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 115 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Significant Accounting Policies
Significant Accounting Policies
116 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 117 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
118 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Recent Accounting Developments
Goldman Sachs 2011 Form 10-K | 119 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
As of December 2011 | As of December 2010 | |||||||||||||||||
in millions | Financial Instruments Owned |
Financial Not Yet |
Financial Instruments Owned |
Financial Not Yet |
||||||||||||||
Commercial paper, certificates of deposit, time deposits and other money market instruments |
$ | 13,440 | $ | | $ | 11,262 | 3 | $ | | |||||||||
U.S. government and federal agency obligations |
87,040 | 21,006 | 84,928 | 23,264 | ||||||||||||||
Non-U.S. government obligations |
49,205 | 34,886 | 40,675 | 29,009 | ||||||||||||||
Mortgage and other asset-backed loans and securities: Loans and securities backed by commercial real estate |
6,699 | 27 | 7,510 | 5 | ||||||||||||||
Loans and securities backed by residential real estate |
7,592 | 3 | 9,532 | 6 | ||||||||||||||
Bank loans and bridge loans |
19,745 | 2,756 | 2 | 18,039 | 1,487 | 2 | ||||||||||||
Corporate debt securities |
22,131 | 6,553 | 24,719 | 7,219 | ||||||||||||||
State and municipal obligations |
3,089 | 3 | 2,792 | | ||||||||||||||
Other debt obligations |
4,362 | | 3,232 | | ||||||||||||||
Equities and convertible debentures |
65,113 | 21,326 | 67,833 | 24,988 | ||||||||||||||
Commodities |
5,762 | | 13,138 | 9 | ||||||||||||||
Derivatives 1 |
80,028 | 58,453 | 73,293 | 54,730 | ||||||||||||||
Total |
$ | 364,206 | $ | 145,013 | $ | 356,953 | $ | 140,717 |
1. | Net of cash collateral received or posted under credit support agreements and reported on a net-by-counterparty basis when a legal right of setoff exists under an enforceable netting agreement. |
2. | Includes the fair value of unfunded commitments to extend credit. The fair value of partially funded commitments is primarily included in Financial instruments owned, at fair value. |
3. | Includes $4.06 billion as of December 2010 of money market instruments held by William Street Funding Corporation (Funding Corp.) to support the William Street credit extension program. See Note 18 for further information about the William Street credit extension program. |
120 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 121 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Financial assets and financial liabilities at fair value are summarized below.
As of December | ||||||||
$ in millions | 2011 | 2010 | ||||||
Total level 1 financial assets |
$ | 136,780 | $ | 137,687 | ||||
Total level 2 financial assets |
587,416 | 566,535 | ||||||
Total level 3 financial assets |
47,937 | 45,377 | ||||||
Netting and collateral 1 |
(120,821 | ) | (112,085 | ) | ||||
Total financial assets at fair value |
$ | 651,312 | $ | 637,514 | ||||
Total assets |
$ | 923,225 | $ | 911,332 | ||||
Total level 3 financial assets as a percentage of Total assets |
5.2 | % | 5.0 | % | ||||
Total level 3 financial assets as a percentage of Total financial assets at fair value |
7.4 | % | 7.1 | % | ||||
Total level 3 financial liabilities at fair value |
$ | 25,498 | $ | 24,054 | ||||
Total financial liabilities at fair value |
$ | 388,669 | $ | 381,604 | ||||
Total level 3 financial liabilities as a percentage of Total financial liabilities at fair value |
6.6 | % | 6.3 | % |
1. | Represents the impact on derivatives of cash collateral and counterparty netting across levels of the fair value hierarchy. Netting among positions classified in the same level is included in that level. |
122 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Cash Instruments
Cash Instruments
Goldman Sachs 2011 Form 10-K | 123 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Level 3 Cash Instrument | Valuation Techniques and Significant Inputs | |
Loans and securities backed by commercial real estate
Collateralized by a single commercial real estate property or a portfolio of properties
May include tranches of varying levels of subordination |
Valuation techniques vary by instrument, but are generally based on discounted cash flow techniques.
Significant inputs for these valuations include:
Transaction prices in both the underlying collateral and instruments with the same or similar underlying collateral
Current levels and changes in market indices such as the CMBX (an index that tracks the performance of commercial mortgage bonds)
Market yields implied by transactions of similar or related assets
Current performance of the underlying collateral
Capitalization rates and multiples
Amount and timing of future cash flows
| |
Loans and securities backed by residential real estate
Collateralized by portfolios of residential real estate
May include tranches of varying levels of subordination |
Valuation techniques vary by instrument, but are generally based on relative value analyses, discounted cash flow techniques or a combination thereof.
Significant inputs are determined based on relative value analyses, which incorporate comparisons to instruments with similar collateral and risk profiles, including relevant indices such as the ABX (an index that tracks the performance of subprime residential mortgage bonds). Significant inputs include:
Home price projections, residential property liquidation timelines and related costs
Underlying loan prepayment, default and cumulative loss expectations
Transaction prices in both the underlying collateral and instruments with the same or similar underlying collateral
Market yields implied by transactions of similar or related assets
| |
Bank loans and bridge loans
Corporate debt securities
State and municipal obligations
Other debt obligations |
Valuation techniques vary by instrument, but are generally based on discounted cash flow techniques.
Significant inputs are generally determined based on relative value analyses, which incorporate comparisons both to prices of credit default swaps that reference the same or similar underlying credit risk and to other debt instruments for the same issuer for which observable prices or broker quotations are available. Significant inputs include:
Amount and timing of expected future cash flows
Current levels and trends of market indices such as CDX, LCDX and MCDX (indices that track the performance of corporate credit, loans and municipal obligations, respectively)
Market yields implied by transactions of similar or related assets
Current performance and recovery assumptions and, where the firm uses credit default swaps to value the related cash instrument, the cost of borrowing the underlying reference obligation
| |
Equities and convertible debentures
Private equity investments |
Recent third-party investments or pending transactions are considered to be the best evidence for any change in fair value. When these are not available, the following valuation methodologies are used, as appropriate and available:
Transactions in similar instruments
Discounted cash flow techniques
Third-party appraisals
Industry multiples and public comparables
Evidence includes recent or pending reorganizations (e.g., merger proposals, tender offers, debt restructurings) and significant changes in financial metrics, such as:
Current financial performance as compared to projected performance
Capitalization rates and multiples
Market yields implied by transactions of similar or related assets
|
124 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Fair Value of Cash Instruments by Level
Cash Instrument Assets at Fair Value as of December 2011 | ||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
Commercial paper, certificates of deposit, time deposits and other money market instruments |
$ | 3,255 | $ | 10,185 | $ | | $ | 13,440 | ||||||||
U.S. government and federal agency obligations |
29,263 | 57,777 | | 87,040 | ||||||||||||
Non-U.S. government obligations |
42,854 | 6,203 | 148 | 49,205 | ||||||||||||
Mortgage and other asset-backed loans and securities 1: |
| 3,353 | 3,346 | 6,699 | ||||||||||||
Loans and securities backed by residential real estate |
| 5,883 | 1,709 | 7,592 | ||||||||||||
Bank loans and bridge loans |
| 8,460 | 11,285 | 19,745 | ||||||||||||
Corporate debt securities 2 |
133 | 19,518 | 2,480 | 22,131 | ||||||||||||
State and municipal obligations |
| 2,490 | 599 | 3,089 | ||||||||||||
Other debt obligations 2 |
| 2,911 | 1,451 | 4,362 | ||||||||||||
Equities and convertible debentures |
39,955 | 3 | 11,491 | 4 | 13,667 | 5 | 65,113 | |||||||||
Commodities |
| 5,762 | | 5,762 | ||||||||||||
Total |
$ | 115,460 | $ | 134,033 | $ | 34,685 | $ | 284,178 | ||||||||
Cash Instrument Liabilities at Fair Value as of December 2011 | ||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
U.S. government and federal agency obligations |
$ | 20,940 | $ | 66 | $ | | $ | 21,006 | ||||||||
Non-U.S. government obligations |
34,339 | 547 | | 34,886 | ||||||||||||
Mortgage and other asset-backed loans and securities: Loans and securities backed by commercial real estate |
| 27 | | 27 | ||||||||||||
Loans and securities backed by residential real estate |
| 3 | | 3 | ||||||||||||
Bank loans and bridge loans |
| 1,891 | 865 | 2,756 | ||||||||||||
Corporate debt securities 6 |
| 6,522 | 31 | 6,553 | ||||||||||||
State and municipal obligations |
| 3 | | 3 | ||||||||||||
Equities and convertible debentures |
20,069 | 3 | 1,248 | 4 | 9 | 21,326 | ||||||||||
Total |
$ | 75,348 | $ | 10,307 | $ | 905 | $ | 86,560 |
1. | Includes $213 million and $595 million of collateralized debt obligations (CDOs) backed by real estate in level 2 and level 3, respectively. |
2. | Includes $403 million and $1.19 billion of CDOs and collateralized loan obligations (CLOs) backed by corporate obligations in level 2 and level 3, respectively. |
3. | Consists of publicly listed equity securities. |
4. | Principally consists of restricted or less liquid publicly listed securities. |
5. | Includes $12.07 billion of private equity investments, $1.10 billion of real estate investments and $497 million of convertible debentures. |
6. | Includes $27 million of CDOs and CLOs backed by corporate obligations in level 3. |
Goldman Sachs 2011 Form 10-K | 125 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Cash Instrument Assets at Fair Value as of December 2010 | ||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
Commercial paper, certificates of deposit, time deposits and
other |
$ | 4,344 | $ | 6,918 | $ | | $ | 11,262 | ||||||||
U.S. government and federal agency obligations |
36,184 | 48,744 | | 84,928 | ||||||||||||
Non-U.S. government obligations |
35,504 | 5,171 | | 40,675 | ||||||||||||
Mortgage and other asset-backed loans and securities 1: Loans and securities backed by commercial real estate |
| 3,534 | 3,976 | 7,510 | ||||||||||||
Loans and securities backed by residential real estate |
| 7,031 | 2,501 | 9,532 | ||||||||||||
Bank loans and bridge loans |
| 8,134 | 9,905 | 18,039 | ||||||||||||
Corporate debt securities 2 |
108 | 21,874 | 2,737 | 24,719 | ||||||||||||
State and municipal obligations |
| 2,038 | 754 | 2,792 | ||||||||||||
Other debt obligations |
| 1,958 | 1,274 | 3,232 | ||||||||||||
Equities and convertible debentures |
41,660 | 3 | 15,113 | 4 | 11,060 | 5 | 67,833 | |||||||||
Commodities |
| 13,138 | | 13,138 | ||||||||||||
Total |
$ | 117,800 | $ | 133,653 | $ | 32,207 | $ | 283,660 | ||||||||
Cash Instrument Liabilities at Fair Value as of December 2010 | ||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
U.S. government and federal agency obligations |
$ | 23,191 | $ | 73 | $ | | $ | 23,264 | ||||||||
Non-U.S. government obligations |
28,168 | 841 | | 29,009 | ||||||||||||
Mortgage and other asset-backed loans and securities: Loans and securities backed by commercial real estate |
| 5 | | 5 | ||||||||||||
Loans and securities backed by residential real estate |
| 6 | | 6 | ||||||||||||
Bank loans and bridge loans |
| 1,107 | 380 | 1,487 | ||||||||||||
Corporate debt securities 6 |
26 | 7,133 | 60 | 7,219 | ||||||||||||
Equities and convertible debentures |
24,283 | 3 | 699 | 4 | 6 | 24,988 | ||||||||||
Commodities |
| 9 | | 9 | ||||||||||||
Total |
$ | 75,668 | $ | 9,873 | $ | 446 | $ | 85,987 |
1. | Includes $212 million and $565 million of CDOs backed by real estate in level 2 and level 3, respectively. |
2. | Includes $368 million and $1.07 billion of CDOs and CLOs backed by corporate obligations in level 2 and level 3, respectively. |
3. | Consists of publicly listed equity securities. |
4. | Substantially all consists of restricted or less liquid publicly listed securities. |
5. | Includes $10.03 billion of private equity investments, $874 million of real estate investments and $156 million of convertible debentures. |
6. | Includes $35 million of CDOs and CLOs backed by corporate obligations in level 3. |
126 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Level 3 Rollforward
Level 3 Cash Instrument Assets at Fair Value for the Year Ended December 2011 | ||||||||||||||||||||||||||||||||
in millions | Balance, beginning of year |
Net realized gains/ (losses) |
Net unrealized year-end |
Purchases 1 | Sales | Settlements | Net transfers in and/or (out) of level 3 |
Balance, end of year |
||||||||||||||||||||||||
Non-U.S. government obligations |
$ | | $ | 25 | $ | (63 | ) | $ | 27 | $ | (123 | ) | $ | (8 | ) | $ | 290 | $ | 148 | |||||||||||||
Mortgage and other asset-backed loans and securities: Loans and securities backed by commercial real estate |
3,976 | 222 | 80 | 1,099 | (1,124 | ) | (831 | ) | (76 | ) | 3,346 | |||||||||||||||||||||
Loans and securities backed by residential real estate |
2,501 | 253 | (81 | ) | 768 | (702 | ) | (456 | ) | (574 | ) | 1,709 | ||||||||||||||||||||
Bank loans and bridge loans |
9,905 | 540 | (216 | ) | 6,725 | (2,329 | ) | (1,554 | ) | (1,786 | ) | 11,285 | ||||||||||||||||||||
Corporate debt securities |
2,737 | 391 | (132 | ) | 1,319 | (1,137 | ) | (697 | ) | (1 | ) | 2,480 | ||||||||||||||||||||
State and municipal obligations |
754 | 12 | (1 | ) | 448 | (591 | ) | (13 | ) | (10 | ) | 599 | ||||||||||||||||||||
Other debt obligations |
1,274 | 124 | (17 | ) | 560 | (388 | ) | (212 | ) | 110 | 1,451 | |||||||||||||||||||||
Equities and convertible debentures |
11,060 | 240 | 338 | 2,731 | (1,196 | ) | (855 | ) | 1,349 | 13,667 | ||||||||||||||||||||||
Total |
$ | 32,207 | $ | 1,807 | 2 | $ | (92 | ) 2 | $ | 13,677 | $ | (7,590 | ) | $ | (4,626 | ) | $ | (698 | ) | $ | 34,685 | |||||||||||
Level 3 Cash Instrument Liabilities at Fair Value for the Year Ended December 2011 | ||||||||||||||||||||||||||||||||
in millions | Balance, beginning of year |
Net realized (gains)/ losses |
Net unrealized (gains)/losses relating to instruments still held at year-end |
Purchases | Sales | Settlements | Net level 3 |
Balance, end of year |
||||||||||||||||||||||||
Total |
$ | 446 | $ | (27 | ) | $ | 218 | $ | (491 | ) | $ | 475 | $ | 272 | $ | 12 | $ | 905 |
1. | Includes both originations and secondary market purchases. |
2. | The aggregate amounts include approximately $(202) million, $623 million and $1.29 billion reported in Market making, Other principal transactions and Interest income, respectively. |
Goldman Sachs 2011 Form 10-K | 127 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Level 3 Cash Instrument Assets at Fair Value for the Year Ended December 2010 | ||||||||||||||||||||||||
in millions | Balance, beginning of year |
Net realized gains/ (losses) |
Net unrealized year-end |
Net purchases, sales and settlements |
Net transfers in and/or (out) of level 3 |
Balance, end of year |
||||||||||||||||||
Mortgage and other asset-backed loans and securities: Loans and securities backed by commercial real estate |
$ | 5,794 | $ | 239 | $ | 108 | $ | (1,335 | ) | $ | (830 | ) | $ | 3,976 | ||||||||||
Loans and securities backed by residential real estate |
2,070 | 178 | 37 | 163 | 53 | 2,501 | ||||||||||||||||||
Bank loans and bridge loans |
9,560 | 687 | 482 | (735 | ) | (89 | ) | 9,905 | ||||||||||||||||
Corporate debt securities |
2,235 | 239 | 348 | 488 | (573 | ) | 2,737 | |||||||||||||||||
State and municipal obligations |
1,114 | 1 | (25 | ) | (393 | ) | 57 | 754 | ||||||||||||||||
Other debt obligations |
2,235 | 4 | 159 | (263 | ) | (861 | ) | 1,274 | ||||||||||||||||
Equities and convertible debentures |
11,871 | 119 | 548 | (847 | ) | (631 | ) | 11,060 | ||||||||||||||||
Total |
$ | 34,879 | $ | 1,467 | 1 | $ | 1,657 | 1 | $ | (2,922 | ) | $ | (2,874 | ) | $ | 32,207 | ||||||||
Level 3 Cash Instrument Liabilities at Fair Value for the Year Ended December 2010 | ||||||||||||||||||||||||
in millions | Balance, beginning of year |
Net realized (gains)/ losses |
Net unrealized year-end |
Net purchases, sales and settlements |
Net transfers in and/or (out) of level 3 |
Balance, end of year |
||||||||||||||||||
Total |
$ | 572 | $ | 5 | $ | (17 | ) | $ | (97 | ) | $ | (17 | ) | $ | 446 |
1. | The aggregate amounts include approximately $836 million, $1.03 billion and $1.26 billion reported in Market making, Other principal transactions and Interest income, respectively. |
128 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Investments in Funds That Calculate Net Asset
Value Per Share
As of December 2011 | As of December 2010 | |||||||||||||||||
in millions | Fair Value of Investments |
Unfunded Commitments |
Fair Value of Investments |
Unfunded Commitments |
||||||||||||||
Private equity funds 1 |
$ 8,074 | $3,514 | $ 7,911 | $ 4,816 | ||||||||||||||
Private debt funds 2 |
3,596 | 3,568 | 4,267 | 3,721 | ||||||||||||||
Hedge funds 3 |
3,165 | | 3,169 | | ||||||||||||||
Real estate and other funds 4 |
1,531 | 1,613 | 1,424 | 1,931 | ||||||||||||||
Total |
$16,366 | $8,695 | $16,771 | $10,468 |
1. | These funds primarily invest in a broad range of industries worldwide in a variety of situations, including leveraged buyouts, recapitalizations and growth investments. |
2. | These funds generally invest in loans and other fixed income instruments and are focused on providing private high-yield capital for mid- to large-sized leveraged and management buyout transactions, recapitalizations, financings, refinancings, acquisitions and restructurings for private equity firms, private family companies and corporate issuers. |
3. | These funds are primarily multi-disciplinary hedge funds that employ a fundamental bottom-up investment approach across various asset classes and strategies including long/short equity, credit, convertibles, risk arbitrage, special situations and capital structure arbitrage. |
4. | These funds invest globally, primarily in real estate companies, loan portfolios, debt recapitalizations and direct property. |
Goldman Sachs 2011 Form 10-K | 129 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Derivatives and Hedging Activities
Derivatives and Hedging Activities
Derivative Activities
130 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
The table below presents the fair value of derivatives on a net-by-counterparty basis.
As of December 2011 | As of December 2010 | |||||||||||||||||
in millions | Derivative Assets |
Derivative Liabilities |
Derivative Assets |
Derivative Liabilities |
||||||||||||||
Exchange-traded |
$ 5,880 | $ 3,172 | $ 7,601 | $ 2,794 | ||||||||||||||
Over-the-counter |
74,148 | 55,281 | 65,692 | 51,936 | ||||||||||||||
Total |
$80,028 | $58,453 | $73,293 | $54,730 |
As of December 2011 |
|
As of December 2010 | ||||||||||||||||||||||||
in millions, except number of contracts | Derivative Assets |
Derivative Liabilities |
Number of Contracts |
Derivative Assets |
Derivative Liabilities |
Number of Contracts |
||||||||||||||||||||
Derivatives not accounted for as hedges Interest rates |
$ | 624,189 | $ | 582,608 | 287,351 | $ | 463,145 | $ | 422,514 | 272,279 | ||||||||||||||||
Credit |
150,816 | 130,659 | 362,407 | 127,153 | 104,407 | 367,779 | ||||||||||||||||||||
Currencies |
88,654 | 71,736 | 203,205 | 87,959 | 70,273 | 222,706 | ||||||||||||||||||||
Commodities |
35,966 | 38,050 | 93,755 | 36,689 | 41,666 | 70,890 | ||||||||||||||||||||
Equities |
64,135 | 51,928 | 332,273 | 65,815 | 51,948 | 289,059 | ||||||||||||||||||||
Subtotal |
963,760 | 874,981 | 1,278,991 | 780,761 | 690,808 | 1,222,713 | ||||||||||||||||||||
Derivatives accounted for as hedges Interest rates |
21,981 | 13 | 1,125 | 23,396 | 33 | 997 | ||||||||||||||||||||
Currencies |
124 | 21 | 71 | 6 | 162 | 72 | ||||||||||||||||||||
Subtotal |
22,105 | 34 | 1,196 | 23,402 | 195 | 1,069 | ||||||||||||||||||||
Gross fair value of derivatives |
$ | 985,865 | $ | 875,015 | 1,280,187 | $ | 804,163 | $ | 691,003 | 1,223,782 | ||||||||||||||||
Counterparty netting 1 |
(787,733 | ) | (787,733 | ) | (620,553 | ) | (620,553 | ) | ||||||||||||||||||
Cash collateral netting 2 |
(118,104 | ) | (28,829 | ) | (110,317 | ) | (15,720 | ) | ||||||||||||||||||
Fair value included in financial instruments owned |
$ | 80,028 | $ | 73,293 | ||||||||||||||||||||||
Fair value included in financial instruments sold, but not yet purchased |
$ | 58,453 | $ | 54,730 |
1. | Represents the netting of receivable balances with payable balances for the same counterparty under enforceable netting agreements. |
2. | Represents the netting of cash collateral received and posted on a counterparty basis under credit support agreements. |
Goldman Sachs 2011 Form 10-K | 131 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
132 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 133 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Fair Value of Derivatives by Level
Derivative Assets at Fair Value as of December 2011 | ||||||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Cross-Level Netting |
Total | |||||||||||||||
Interest rates |
$33 | $ | 645,923 | $ | 214 | $ | $ | 646,170 | ||||||||||||
Credit |
| 137,110 | 13,706 | | 150,816 | |||||||||||||||
Currencies |
| 86,752 | 2,026 | | 88,778 | |||||||||||||||
Commodities |
| 35,062 | 904 | | 35,966 | |||||||||||||||
Equities |
24 | 62,684 | 1,427 | | 64,135 | |||||||||||||||
Gross fair value of derivative assets |
57 | 967,531 | 18,277 | | 985,865 | |||||||||||||||
Counterparty netting 1 |
| (778,639 | ) | (6,377 | ) | (2,717 | ) 3 | (787,733 | ) | |||||||||||
Subtotal |
$57 | $ | 188,892 | $ | 11,900 | $(2,717 | ) | $ | 198,132 | |||||||||||
Cash collateral netting 2 |
(118,104 | ) | ||||||||||||||||||
Fair value included in financial instruments owned |
$ | 80,028 | ||||||||||||||||||
Derivative Liabilities at Fair Value as of December 2011 | ||||||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Cross-Level Netting |
Total | |||||||||||||||
Interest rates |
$ 24 | $ | 582,012 | $ | 585 | $ | $ | 582,621 | ||||||||||||
Credit |
| 123,253 | 7,406 | | 130,659 | |||||||||||||||
Currencies |
| 70,573 | 1,184 | | 71,757 | |||||||||||||||
Commodities |
| 36,541 | 1,509 | | 38,050 | |||||||||||||||
Equities |
185 | 49,884 | 1,859 | | 51,928 | |||||||||||||||
Gross fair value of derivative liabilities |
209 | 862,263 | 12,543 | | 875,015 | |||||||||||||||
Counterparty netting 1 |
| (778,639 | ) | (6,377 | ) | (2,717 | ) 3 | (787,733 | ) | |||||||||||
Subtotal |
$209 | $ | 83,624 | $ | 6,166 | $(2,717 | ) | $ | 87,282 | |||||||||||
Cash collateral netting 2 |
(28,829 | ) | ||||||||||||||||||
Fair value included in financial instruments sold, |
$ | 58,453 |
1. | Represents the netting of receivable balances with payable balances for the same counterparty under enforceable netting agreements. |
2. | Represents the netting of cash collateral received and posted on a counterparty basis under credit support agreements. |
3. | Represents the netting of receivable balances with payable balances for the same counterparty across levels of the fair value hierarchy under enforceable netting agreements. |
134 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Derivative Assets at Fair Value as of December 2010 | ||||||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Cross-Level Netting |
Total | |||||||||||||||
Interest rates |
$ | 49 | $ | 486,037 | $ | 455 | $ | | $ | 486,541 | ||||||||||
Credit |
| 115,519 | 11,634 | | 127,153 | |||||||||||||||
Currencies |
| 86,158 | 1,807 | | 87,965 | |||||||||||||||
Commodities |
| 34,511 | 2,178 | | 36,689 | |||||||||||||||
Equities |
44 | 64,267 | 1,504 | | 65,815 | |||||||||||||||
Gross fair value of derivative assets |
93 | 786,492 | 17,578 | | 804,163 | |||||||||||||||
Counterparty netting 1 |
| (613,979 | ) | (4,806 | ) | (1,768 | ) 3 | (620,553 | ) | |||||||||||
Subtotal |
$ | 93 | $ | 172,513 | $ | 12,772 | $ | (1,768 | ) | $ | 183,610 | |||||||||
Cash collateral netting 2 |
(110,317 | ) | ||||||||||||||||||
Fair value included in financial instruments owned |
$ | 73,293 | ||||||||||||||||||
Derivative Liabilities at Fair Value as of December 2010 | ||||||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Cross-Level Netting |
Total | |||||||||||||||
Interest rates |
$ | 18 | $ | 422,267 | $ | 262 | $ | | $ | 422,547 | ||||||||||
Credit |
| 99,813 | 4,594 | | 104,407 | |||||||||||||||
Currencies |
| 69,726 | 709 | | 70,435 | |||||||||||||||
Commodities |
| 39,709 | 1,957 | | 41,666 | |||||||||||||||
Equities |
27 | 49,427 | 2,494 | | 51,948 | |||||||||||||||
Gross fair value of derivative liabilities |
45 | 680,942 | 10,016 | | 691,003 | |||||||||||||||
Counterparty netting 1 |
| (613,979 | ) | (4,806 | ) | (1,768 | ) 3 | (620,553 | ) | |||||||||||
Subtotal |
$ | 45 | $ | 66,963 | $ | 5,210 | $ | (1,768 | ) | $ | 70,450 | |||||||||
Cash collateral netting 2 |
(15,720 | ) | ||||||||||||||||||
Fair value included in financial instruments sold, but not yet purchased |
$ | 54,730 |
1. | Represents the netting of receivable balances with payable balances for the same counterparty under enforceable netting agreements. |
2. | Represents the netting of cash collateral received and posted on a counterparty basis under credit support agreements. |
3. | Represents the netting of receivable balances with payable balances for the same counterparty across levels of the fair value hierarchy under enforceable netting agreements. |
Goldman Sachs 2011 Form 10-K | 135 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Level 3 Rollforward
Level 3 Derivative Assets and Liabilities at Fair Value for the Year Ended December 2011 | ||||||||||||||||||||||||||||||||
in millions | Asset/ (liability) |
Net realized |
Net unrealized gains/(losses) relating to instruments still held at year-end |
Purchases | Sales | Settlements | Net transfers in and/or (out) of level 3 |
Asset/ (liability) balance, year |
||||||||||||||||||||||||
Interest rates net |
$ | 194 | $ | (38 | ) | $ | (305 | ) | $ | 23 | $ | (29 | ) | $ | 84 | $ | (300 | ) | $ | (371 | ) | |||||||||||
Credit net |
7,040 | 46 | 2,525 | 348 | (1,310 | ) | (1,713 | ) | (636 | ) | 6,300 | |||||||||||||||||||||
Currencies net |
1,098 | (26 | ) | (351 | ) | 29 | (25 | ) | (54 | ) | 171 | 842 | ||||||||||||||||||||
Commodities net |
220 | (35 | ) | 259 | 125 | (835 | ) | 150 | (489 | ) | (605 | ) | ||||||||||||||||||||
Equities net |
(990 | ) | 184 | 151 | 382 | (683 | ) | 159 | 365 | (432 | ) | |||||||||||||||||||||
Total derivatives net |
$ | 7,562 | $ | 131 | 1 | $ | 2,279 | 1, 2 | $ | 907 | $ | (2,882 | ) | $ | (1,374 | ) | $ | (889 | ) | $ | 5,734 |
1. | The aggregate amounts include approximately $2.35 billion and $62 million reported in Market making and Other principal transactions, respectively. |
2. | Principally resulted from changes in level 2 inputs. |
136 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Level 3 Derivative Assets and Liabilities at Fair Value for the Year Ended December 2010 | ||||||||||||||||||||||||
in millions | Asset/ (liability) |
Net realized |
Net unrealized year-end |
Net purchases, sales and settlements |
Net and/or (out) |
Asset/ (liability) balance, end of year |
||||||||||||||||||
Interest rates net |
$ | (71 | ) | $ | (79 | ) | $ | 156 | $ | (118 | ) | $ | 306 | $ | 194 | |||||||||
Credit net |
6,366 | 8 | 4,393 | (2,663 | ) | (1,064 | ) | 7,040 | ||||||||||||||||
Currencies net |
215 | (83 | ) | 317 | 110 | 539 | 1,098 | |||||||||||||||||
Commodities net |
(90 | ) | 48 | 312 | 33 | (83 | ) | 220 | ||||||||||||||||
Equities net |
(1,224 | ) | (38 | ) | 6 | 43 | 223 | (990 | ) | |||||||||||||||
Total derivatives net |
$ | 5,196 | $ | (144 | ) 1 | $ | 5,184 | 1, 2 | $ | (2,595 | ) | $ | (79 | ) | $ | 7,562 |
1. | The aggregate amounts include approximately $4.99 billion and $55 million reported in Market making and Other principal transactions, respectively. |
2. | Principally resulted from changes in level 2 inputs. |
Goldman Sachs 2011 Form 10-K | 137 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
OTC Derivatives
in millions | OTC Derivatives as of December 2011 | |||||||||||||||
Assets Product Type |
0 - 12 Months |
1 - 5 Years |
5 Years or Greater |
Total | ||||||||||||
Interest rates |
$ | 10,931 | $ | 32,194 | $ | 82,480 | $ | 125,605 | ||||||||
Credit |
3,054 | 15,468 | 13,687 | 32,209 | ||||||||||||
Currencies |
11,253 | 11,592 | 16,023 | 38,868 | ||||||||||||
Commodities |
5,286 | 5,931 | 147 | 11,364 | ||||||||||||
Equities |
6,663 | 7,768 | 7,468 | 21,899 | ||||||||||||
Netting across product types 1 |
(3,071 | ) | (6,033 | ) | (6,027 | ) | (15,131 | ) | ||||||||
Subtotal |
$ | 34,116 | $ | 66,920 | $ | 113,778 | 214,814 | |||||||||
Cross maturity netting 2 |
(22,562 | ) | ||||||||||||||
Cash collateral netting 3 |
(118,104 | ) | ||||||||||||||
Total |
$ | 74,148 | ||||||||||||||
Liabilities Product Type |
0 - 12 Months |
1 - 5 Years |
5 Years or Greater |
Total | ||||||||||||
Interest rates |
$ | 5,787 | $ | 18,607 | $ | 37,739 | $ | 62,133 | ||||||||
Credit |
1,200 | 6,957 | 3,894 | 12,051 | ||||||||||||
Currencies |
9,826 | 5,514 | 6,502 | 21,842 | ||||||||||||
Commodities |
6,322 | 5,174 | 2,727 | 14,223 | ||||||||||||
Equities |
3,290 | 4,018 | 4,246 | 11,554 | ||||||||||||
Netting across product types 1 |
(3,071 | ) | (6,033 | ) | (6,027 | ) | (15,131 | ) | ||||||||
Subtotal |
$ | 23,354 | $ | 34,237 | $ | 49,081 | 106,672 | |||||||||
Cross maturity netting 2 |
(22,562 | ) | ||||||||||||||
Cash collateral netting 3 |
(28,829 | ) | ||||||||||||||
Total |
$ | 55,281 |
1. | Represents the netting of receivable balances with payable balances for the same counterparty across product types within a tenor category under enforceable netting agreements. Receivable and payable balances with the same counterparty in the same product type and tenor category are netted within such product type and tenor category. |
2. | Represents the netting of receivable balances with payable balances for the same counterparty across tenor categories under enforceable netting agreements. |
3. | Represents the netting of cash collateral received and posted on a counterparty basis under credit support agreements. |
138 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
in millions | OTC Derivatives as of December 2010 | |||||||||||||||
Assets
Product Type |
0 - 12 Months |
1 - 5 Years |
5 Years or Greater |
Total | ||||||||||||
Interest rates |
$ | 7,137 | $ | 34,384 | $ | 60,750 | $ | 102,271 | ||||||||
Credit |
2,777 | 16,145 | 13,525 | 32,447 | ||||||||||||
Currencies |
9,968 | 10,696 | 14,868 | 35,532 | ||||||||||||
Commodities |
5,664 | 5,996 | 248 | 11,908 | ||||||||||||
Equities |
4,795 | 10,942 | 7,037 | 22,774 | ||||||||||||
Netting across product types 1 |
(2,937 | ) | (5,513 | ) | (5,077 | ) | (13,527 | ) | ||||||||
Subtotal |
$ | 27,404 | $ | 72,650 | $ | 91,351 | $ | 191,405 | ||||||||
Cross maturity netting 2 |
(15,396 | ) | ||||||||||||||
Cash collateral netting 3 |
(110,317 | ) | ||||||||||||||
Total |
$ | 65,692 | ||||||||||||||
Liabilities
Product Type |
0 - 12 Months |
1 - 5 Years |
5 Years or Greater |
Total | ||||||||||||
Interest rates |
$ | 4,470 | $ | 14,072 | $ | 19,760 | $ | 38,302 | ||||||||
Credit |
1,024 | 4,862 | 3,816 | 9,702 | ||||||||||||
Currencies |
8,036 | 5,219 | 4,986 | 18,241 | ||||||||||||
Commodities |
7,279 | 7,838 | 2,528 | 17,645 | ||||||||||||
Equities |
3,962 | 4,977 | 3,750 | 12,689 | ||||||||||||
Netting across product types 1 |
(2,937 | ) | (5,513 | ) | (5,077 | ) | (13,527 | ) | ||||||||
Subtotal |
$ | 21,834 | $ | 31,455 | $ | 29,763 | $ | 83,052 | ||||||||
Cross maturity netting 2 |
(15,396 | ) | ||||||||||||||
Cash collateral netting 3 |
(15,720 | ) | ||||||||||||||
Total |
$ | 51,936 |
1. | Represents the netting of receivable balances with payable balances for the same counterparty across product types within a tenor category under enforceable netting agreements. Receivable and payable balances with the same counterparty in the same product type and tenor category are netted within such product type and tenor category. |
2. | Represents the netting of receivable balances with payable balances for the same counterparty across tenor categories under enforceable netting agreements. |
3. | Represents the netting of cash collateral received and posted on a counterparty basis under credit support agreements. |
Goldman Sachs 2011 Form 10-K | 139 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
140 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Maximum Payout/Notional Amount of Written Credit Derivatives by Tenor |
Maximum Payout/Notional Amount of Purchased Credit Derivatives |
Fair Value of Written Credit Derivatives |
||||||||||||||||||||||||||||||||||||||
$ in millions | 0 - 12 Months |
1 - 5 Years |
5 Years or Greater |
Total | Offsetting Purchased Credit Derivatives 1 |
Other Purchased Credit Derivatives 2 |
Asset | Liability | Net Asset/ (Liability) |
|||||||||||||||||||||||||||||||
As of December 2011 |
||||||||||||||||||||||||||||||||||||||||
Credit spread on underlying (basis points) |
||||||||||||||||||||||||||||||||||||||||
0-250 |
$ | 282,851 | $ | 794,193 | $ | 141,688 | $ | 1,218,732 | $ | 1,122,296 | $ | 180,316 | $ | 17,572 | $ | 16,907 | $ | 665 | ||||||||||||||||||||||
251-500 |
42,682 | 269,687 | 69,864 | 382,233 | 345,942 | 47,739 | 4,517 | 20,810 | (16,293 | ) | ||||||||||||||||||||||||||||||
501-1,000 |
29,377 | 140,389 | 21,819 | 191,585 | 181,003 | 23,176 | 138 | 15,398 | (15,260 | ) | ||||||||||||||||||||||||||||||
Greater than 1,000 |
30,244 | 114,103 | 22,995 | 167,342 | 147,614 | 28,734 | 512 | 57,201 | (56,689 | ) | ||||||||||||||||||||||||||||||
Total |
$ | 385,154 | $ | 1,318,372 | $ | 256,366 | $ | 1,959,892 | $ | 1,796,855 | $ | 279,965 | $ | 22,739 | $ | 110,316 | $ | (87,577 | ) | |||||||||||||||||||||
As of December 2010 |
||||||||||||||||||||||||||||||||||||||||
Credit spread on underlying (basis points) |
||||||||||||||||||||||||||||||||||||||||
0-250 |
$ | 235,798 | $ | 1,094,308 | $ | 288,851 | $ | 1,618,957 | $ | 1,511,113 | $ | 232,506 | $ | 32,071 | $ | 14,780 | $ | 17,291 | ||||||||||||||||||||||
251-500 |
14,412 | 144,448 | 52,072 | 210,932 | 183,613 | 36,713 | 7,368 | 7,739 | (371 | ) | ||||||||||||||||||||||||||||||
501-1,000 |
6,384 | 89,212 | 33,553 | 129,149 | 110,019 | 18,686 | 2,571 | 11,256 | (8,685 | ) | ||||||||||||||||||||||||||||||
Greater than 1,000 |
11,721 | 63,982 | 12,022 | 87,725 | 70,945 | 23,795 | 483 | 33,670 | (33,187 | ) | ||||||||||||||||||||||||||||||
Total |
$ | 268,315 | $ | 1,391,950 | $ | 386,498 | $ | 2,046,763 | $ | 1,875,690 | $ | 311,700 | $ | 42,493 | $ | 67,445 | $ | (24,952 | ) |
1. | Offsetting purchased credit derivatives represent the notional amount of purchased credit derivatives to the extent they economically hedge written credit derivatives with identical underlyings. |
2. | This purchased protection represents the notional amount of purchased credit derivatives in excess of the notional amount included in Offsetting Purchased Credit Derivatives. |
Goldman Sachs 2011 Form 10-K | 141 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
142 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 143 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
144 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Fair Value of Other Financial Assets and Financial
Liabilities by Level
Other Financial Assets at Fair Value as of December 2011 | ||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
Securities segregated for regulatory and other purposes 1 |
$ | 21,263 | $ | 20,751 | $ | | $ | 42,014 | ||||||||
Securities purchased under agreements to resell |
| 187,232 | 557 | 187,789 | ||||||||||||
Securities borrowed |
| 47,621 | | 47,621 | ||||||||||||
Receivables from customers and counterparties |
| 8,887 | 795 | 9,682 | ||||||||||||
Total |
$ | 21,263 | $ | 264,491 | $ | 1,352 | $ | 287,106 | ||||||||
Other Financial Liabilities at Fair Value as of December 2011 | ||||||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Total | ||||||||||||
Deposits |
$ | | $ | 4,513 | $ | 13 | $ | 4,526 | ||||||||
Securities sold under agreements to repurchase |
| 162,321 | 2,181 | 164,502 | ||||||||||||
Securities loaned |
| 107 | | 107 | ||||||||||||
Other secured financings |
| 28,267 | 1,752 | 30,019 | ||||||||||||
Unsecured short-term borrowings |
| 14,560 | 3,294 | 17,854 | ||||||||||||
Unsecured long-term borrowings |
| 14,971 | 2,191 | 17,162 | ||||||||||||
Other liabilities and accrued expenses |
| 490 | 8,996 | 9,486 | ||||||||||||
Total |
$ | | $ | 225,229 | $ | 18,427 | $ | 243,656 |
1. | Includes securities segregated for regulatory and other purposes accounted for at fair value under the fair value option, which consists of securities borrowed and resale agreements. The table above also includes $21.26 billion of level 1 and $528 million of level 2 securities segregated for regulatory and other purposes accounted for at fair value under other U.S. GAAP, principally consisting of U.S. Treasury securities, money market instruments and insurance separate account assets. |
Goldman Sachs 2011 Form 10-K | 145 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Other Financial Assets at Fair Value as of December 2010 | ||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Total | ||||||||
Securities segregated for regulatory and other purposes 1 |
$19,794 |
$ 16,388 | $ | $ 36,182 | ||||||||
Securities purchased under agreements to resell |
| 188,255 | 100 | 188,355 | ||||||||
Securities borrowed |
| 48,822 | | 48,822 | ||||||||
Receivables from customers and counterparties |
| 6,904 | 298 | 7,202 | ||||||||
Total |
$19,794 |
$260,369 | $398 | $280,561 |
Other Financial Liabilities at Fair Value as of December 2010 | ||||||||||||
in millions | Level 1 | Level 2 | Level 3 | Total | ||||||||
Deposits |
$ | $ 1,975 | $ | $ 1,975 | ||||||||
Securities sold under agreements to repurchase |
| 160,285 | 2,060 | 162,345 | ||||||||
Securities loaned |
| 1,514 | | 1,514 | ||||||||
Other secured financings |
| 23,445 | 8,349 | 31,794 | ||||||||
Unsecured short-term borrowings |
| 18,640 | 3,476 | 22,116 | ||||||||
Unsecured long-term borrowings |
| 16,067 | 2,104 | 18,171 | ||||||||
Other liabilities and accrued expenses |
| 563 | 2,409 | 2,972 | ||||||||
Total |
$ | $222,489 | $18,398 | $240,887 |
1. | Includes securities segregated for regulatory and other purposes accounted for at fair value under the fair value option, which consists of securities borrowed and resale agreements. The table above also includes $19.79 billion of level 1 and $3.53 billion of level 2 securities segregated for regulatory and other purposes accounted for at fair value under other U.S. GAAP, principally consisting of U.S. Treasury securities, money market instruments and insurance separate account assets. |
146 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Level 3 Rollforward
Level 3 Other Financial Assets at Fair Value for the Year Ended December 2011 | ||||||||||||||||||||||||
in millions | Balance, beginning of year |
Net realized gains/ (losses) |
Net unrealized year-end |
Purchases | Sales | Settlements | Net level 3 |
Balance, end of year | ||||||||||||||||
Securities purchased under agreements to resell |
$100 | $ 2 | $ | $ 620 | $ | $(165) | $ | $ 557 | ||||||||||||||||
Receivables from customers and counterparties |
298 | | 54 | 468 | | (25) | | 795 | ||||||||||||||||
Total |
$398 | $ 2 | $54 | $1,088 | $ | $(190) | $ | $1,352 |
Level 3 Other Financial Liabilities at Fair Value for the Year Ended December 2011 | |||||||||||||||||||||||||||
in millions | Balance, beginning of year |
Net realized (gains)/ losses |
Net unrealized year-end |
Purchases | Sales | Issuances | Settlements | Net level 3 |
Balance, year | ||||||||||||||||||
Deposits |
$ | $ | $ | $ | $ | $ 13 | $ | $ | $ 13 | ||||||||||||||||||
Securities sold under agreements to repurchase, at fair value |
2,060 | | | | | 299 | (178) | | 2,181 | ||||||||||||||||||
Other secured financings |
8,349 | 8 | 3 | | | 483 | (4,062) | (3,029) | 1,752 | ||||||||||||||||||
Unsecured short-term borrowings |
3,476 | (15) | (340) | (5) | | 815 | (1,080) | 443 | 3,294 | ||||||||||||||||||
Unsecured long-term borrowings |
2,104 | 25 | 5 | | | 441 | (193) | (191) | 2,191 | ||||||||||||||||||
Other liabilities and accrued expenses |
2,409 | | 1,095 | 5,840 | | | (348) | | 8,996 | ||||||||||||||||||
Total |
$18,398 | $ 18 | $ 763 | $5,835 | $ | $2,051 | $(5,861) | $(2,777) | $18,427 |
Goldman Sachs 2011 Form 10-K | 147 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Level 3 Other Financial Assets at Fair Value for the Year Ended December 2010 | ||||||||||||||||||||||||
in millions | Balance, beginning of year |
Net realized gains/ (losses) |
Net unrealized year-end |
Net purchases, sales and settlements |
Net transfers in and/or (out) of level 3 |
Balance, year |
||||||||||||||||||
Securities purchased under agreements to resell |
$ | $ 3 | $ | $ 97 | $ | $ 100 | ||||||||||||||||||
Receivables from customers and counterparties |
| 22 | (58 | ) | | 334 | 298 | |||||||||||||||||
Total |
$ | $ 25 | $ (58 | ) | $ 97 | $ 334 | $ 398 | |||||||||||||||||
Level 3 Other Financial Liabilities at Fair Value for the Year Ended December 2010 | ||||||||||||||||||||||||
in millions | Balance, beginning of year |
Net realized (gains)/ losses |
Net unrealized year-end |
Net purchases, sales, issuances and settlements |
Net transfers in and/or (out) of level 3 |
Balance, year |
||||||||||||||||||
Securities sold under agreements to repurchase, at fair value |
$ 394 | $ | $ | $1,666 | $ | $ 2,060 | ||||||||||||||||||
Other secured financings |
6,756 | (1 | ) | 25 | 1,605 | (36 | ) | 8,349 | ||||||||||||||||
Unsecured short-term borrowings |
2,310 | 91 | 35 | (300 | ) | 1,340 | 3,476 | |||||||||||||||||
Unsecured long-term borrowings |
3,077 | 23 | 41 | 216 | (1,253 | ) | 2,104 | |||||||||||||||||
Other liabilities and accrued expenses |
1,913 | 10 | 54 | (155 | ) | 587 | 2,409 | |||||||||||||||||
Total |
$14,450 | $123 | $155 | $3,032 | $ 638 | $18,398 |
148 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Gains and Losses on Other Financial Assets and
Financial Liabilities at Fair Value
Gains/(Losses) on Other Financial Assets and Financial Liabilities at Fair Value | ||||||||||||||||||||||||||||
Year Ended December | ||||||||||||||||||||||||||||
2011 | 2010 | 2009 | ||||||||||||||||||||||||||
in millions | Fair Value |
Other | Fair Value Option |
Other | Fair Value |
Other | ||||||||||||||||||||||
Receivables from customers and counterparties 1 |
$ (11 | ) | $ 442 | $(106 | ) | $ 558 | $ 255 | $ | ||||||||||||||||||||
Other secured financings |
123 | (1,199 | ) | (35 | ) | (996 | ) | (822 | ) | 48 | ||||||||||||||||||
Unsecured short-term borrowings |
144 | 2,005 | 33 | (1,488 | ) | (182 | ) | (3,150 | ) | |||||||||||||||||||
Unsecured long-term borrowings |
535 | 1,801 | 152 | (1,321 | ) | (884 | ) | (4,150 | ) | |||||||||||||||||||
Other liabilities and accrued expenses 2 |
(994 | ) | 83 | (88 | ) | 138 | (214 | ) | | |||||||||||||||||||
Other 3 |
90 | | (10 | ) | | 79 | | |||||||||||||||||||||
Total |
$(113 | ) | $ 3,132 | $ (54 | ) | $(3,109 | ) | $(1,768 | ) | $(7,252 | ) |
1. | Primarily consists of gains/(losses) on certain transfers accounted for as receivables rather than purchases and certain reinsurance contracts. |
2. | Primarily consists of gains/(losses) on certain insurance contracts. |
3. | Primarily consists of gains/(losses) on resale and repurchase agreements, securities borrowed and loaned and deposits. |
Goldman Sachs 2011 Form 10-K | 149 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
150 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Collateralized Agreements and Financings
Collateralized Agreements and Financings
Goldman Sachs 2011 Form 10-K | 151 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
152 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
As of December 2011 | As of December 2010 | |||||||||||||||||||||||||
$ in millions | U.S. Dollar |
Non-U.S. Dollar |
Total | U.S. Dollar |
Non-U.S. Dollar |
Total | ||||||||||||||||||||
Other secured financings (short-term): At fair value |
$ | 18,519 | $ | 5,140 | $ | 23,659 | $ | 16,404 | $ | 3,684 | $ | 20,088 | ||||||||||||||
At amortized cost |
155 | 5,371 | 5,526 | 99 | 4,342 | 4,441 | ||||||||||||||||||||
Interest rates 1 |
3.85 | % | 0.22 | % | 2.96 | % | 0.71 | % | ||||||||||||||||||
Other secured financings (long-term): At fair value |
4,305 | 2,055 | 6,360 | 9,594 | 2,112 | 11,706 | ||||||||||||||||||||
At amortized cost |
1,024 | 795 | 1,819 | 1,565 | 577 | 2,142 | ||||||||||||||||||||
Interest rates 1 |
1.88 | % | 3.28 | % | 2.14 | % | 1.94 | % | ||||||||||||||||||
Total 2 |
$ | 24,003 | $ | 13,361 | $ | 37,364 | $ | 27,662 | $ | 10,715 | $ | 38,377 | ||||||||||||||
Amount of other secured financings collateralized by: Financial instruments 3 |
$ | 23,703 | $ | 12,169 | $ | 35,872 | $ | 27,014 | $ | 8,760 | $ | 35,774 | ||||||||||||||
Other assets 4 |
300 | 1,192 | 1,492 | 648 | 1,955 | 2,603 |
1. | The weighted average interest rates exclude secured financings at fair value and include the effect of hedging activities. See Note 7 for further information about hedging activities. |
2. | Includes $9.36 billion and $8.32 billion related to transfers of financial assets accounted for as financings rather than sales as of December 2011 and December 2010, respectively. Such financings were collateralized by financial assets included in Financial instruments owned, at fair value of $9.51 billion and $8.53 billion as of December 2011 and December 2010, respectively. |
3. | Includes $14.82 billion and $25.63 billion of other secured financings collateralized by financial instruments owned, at fair value and $21.06 billion and $10.14 billion of other secured financings collateralized by financial instruments received as collateral and repledged as of December 2011 and December 2010, respectively. |
4. | Primarily real estate and cash. |
Goldman Sachs 2011 Form 10-K | 153 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
154 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
As of December 2011 | As of December 2010 | |||||||||||||||||||||||||
in millions | Outstanding Principal Amount |
Fair Value of Retained Interests |
Fair Value of Purchased |
Outstanding Principal Amount |
Fair Value of Retained Interests |
Fair Value of Purchased |
||||||||||||||||||||
U.S. government agency-issued collateralized mortgage obligations 1 |
$ | 70,448 | $ | 5,038 | $ | | $ | 60,352 | $ | 5,929 | $ | | ||||||||||||||
Other residential mortgage-backed 2 |
4,459 | 101 | 3 | 13,318 | 125 | 5 | ||||||||||||||||||||
Commercial mortgage-backed 3 |
3,398 | 606 | 331 | 5,040 | 849 | 82 | ||||||||||||||||||||
CDOs, CLOs and other 4 |
9,972 | 32 | 211 | 12,872 | 62 | 229 | ||||||||||||||||||||
Total 5 |
$ | 88,277 | $ | 5,777 | $ | 545 | $ | 91,582 | $ | 6,965 | $ | 316 |
1. | Outstanding principal amount and fair value of retained interests primarily relate to securitizations during 2011 and 2010 as of December 2011, and securitizations during 2010 and 2009 as of December 2010. |
2. | Outstanding principal amount and fair value of retained interests as of both December 2011 and December 2010 primarily relate to prime and Alt-A securitizations during 2007 and 2006. |
3. | Outstanding principal amount as of both December 2011 and December 2010 primarily relate to securitizations during 2010, 2007 and 2006. Fair value of retained interests as of both December 2011 and December 2010 primarily relate to securitizations during 2010. |
4. | Outstanding principal amount and fair value of retained interests as of both December 2011 and December 2010 primarily relate to CDO and CLO securitizations during 2007 and 2006. |
5. | Outstanding principal amount and fair value of retained interests include $774 million and $0, respectively, as of December 2011, and $7.64 billion and $16 million, respectively, as of December 2010, related to securitization entities in which the firms only continuing involvement is retained servicing which is not a variable interest. |
Goldman Sachs 2011 Form 10-K | 155 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
As of December 2011 | As of December 2010 | |||||||||||||||||
Type of Retained Interests | Type of Retained Interests | |||||||||||||||||
$ in millions | Mortgage-Backed | Other 1 | Mortgage-Backed | Other 1 | ||||||||||||||
Fair value of retained interests |
$ | 5,745 | $ | 32 | $ | 6,903 | $ | 62 | ||||||||||
Weighted average life (years) |
7.1 | 4.7 | 7.4 | 4.2 | ||||||||||||||
Constant prepayment rate 2 |
14.1 | % | N.M. | 11.6 | % | N.M. | ||||||||||||
Impact of 10% adverse change 2 |
$ | (55 | ) | N.M. | $ | (62 | ) | N.M. | ||||||||||
Impact of 20% adverse change 2 |
(108 | ) | N.M. | (128 | ) | N.M. | ||||||||||||
Discount rate 3 |
5.4 | % | N.M. | 5.3 | % | N.M. | ||||||||||||
Impact of 10% adverse change |
$ | (125 | ) | N.M. | $ | (175 | ) | N.M. | ||||||||||
Impact of 20% adverse change |
(240 | ) | N.M. | (341 | ) | N.M. |
1. | Due to the nature and current fair value of certain of these retained interests, the weighted average assumptions for constant prepayment and discount rates and the related sensitivity to adverse changes are not meaningful as of December 2011 and December 2010. The firms maximum exposure to adverse changes in the value of these interests is the carrying value of $32 million and $62 million as of December 2011 and December 2010, respectively. |
2. | Constant prepayment rate is included only for positions for which constant prepayment rate is a key assumption in the determination of fair value. |
3. | The majority of mortgage-backed retained interests are U.S. government agency-issued collateralized mortgage obligations, for which there is no anticipated credit loss. For the remainder of retained interests, the expected credit loss assumptions are reflected in the discount rate. |
156 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Variable Interest Entities
Variable Interest Entities
Goldman Sachs 2011 Form 10-K | 157 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
158 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Nonconsolidated VIEs | ||||||||||||||||||||||||||||
As of December 2011 | ||||||||||||||||||||||||||||
in millions | Mortgage- backed |
Corporate CDOs and CLOs |
Real estate, related and |
Other backed |
Power- related |
Investment funds |
Total | |||||||||||||||||||||
Assets in VIE |
$ | 94,047 | 2 | $ | 20,340 | $ | 8,974 | $ | 4,593 | $ | 519 | $ | 2,208 | $ | 130,681 | |||||||||||||
Carrying Value of the Firms Variable Interests |
||||||||||||||||||||||||||||
Assets |
7,004 | 911 | 1,495 | 352 | 289 | 5 | 10,056 | |||||||||||||||||||||
Liabilities |
| 63 | 3 | 24 | 2 | | 92 | |||||||||||||||||||||
Maximum Exposure to Loss in Nonconsolidated VIEs |
||||||||||||||||||||||||||||
Retained interests |
5,745 | 32 | | | | | 5,777 | |||||||||||||||||||||
Purchased interests |
962 | 368 | | 333 | | | 1,663 | |||||||||||||||||||||
Commitments and guarantees 1 |
| 1 | 373 | | 46 | | 420 | |||||||||||||||||||||
Derivatives 1 |
2,469 | 7,529 | | 1,221 | | | 11,219 | |||||||||||||||||||||
Loans and investments |
82 | | 1,495 | | 288 | 5 | 1,870 | |||||||||||||||||||||
Total |
$ | 9,258 | 2 | $ | 7,930 | $ | 1,868 | $ | 1,554 | $ | 334 | $ | 5 | $ | 20,949 | |||||||||||||
Nonconsolidated VIEs | ||||||||||||||||||||||||||||
As of December 2010 | ||||||||||||||||||||||||||||
in millions | Mortgage- backed |
Corporate CDOs and CLOs |
Real estate, related and |
Other backed |
Power- related |
Investment funds |
Total | |||||||||||||||||||||
Assets in VIE |
$ | 88,755 | 2 | $ | 21,644 | $ | 12,568 | $ | 5,513 | $ | 552 | $ | 2,330 | $ | 131,362 | |||||||||||||
Carrying Value of the Firms Variable Interests |
||||||||||||||||||||||||||||
Assets |
8,076 | 909 | 1,063 | 266 | 239 | 5 | 10,558 | |||||||||||||||||||||
Liabilities |
| 114 | 1 | 19 | 14 | | 148 | |||||||||||||||||||||
Maximum Exposure to Loss in Nonconsolidated VIEs |
||||||||||||||||||||||||||||
Retained interests |
6,887 | 50 | | 12 | | | 6,949 | |||||||||||||||||||||
Purchased interests |
839 | 353 | | 247 | | | 1,439 | |||||||||||||||||||||
Commitments and guarantees 1 |
| 1 | 125 | | 69 | | 195 | |||||||||||||||||||||
Derivatives 1 |
3,128 | 7,593 | | 1,105 | | | 11,826 | |||||||||||||||||||||
Loans and investments |
104 | | 1,063 | | 239 | 5 | 1,411 | |||||||||||||||||||||
Total |
$ | 10,958 | 2 | $ | 7,997 | $ | 1,188 | $ | 1,364 | $ | 308 | $ | 5 | $ | 21,820 |
1. | The aggregate amounts include $4.17 billion and $4.52 billion as of December 2011 and December 2010, respectively, related to guarantees and derivative transactions with VIEs to which the firm transferred assets. |
2. | Assets in VIE and maximum exposure to loss include $6.15 billion and $2.62 billion, respectively, as of December 2011, and $6.14 billion and $3.25 billion, respectively, as of December 2010, related to CDOs backed by mortgage obligations. |
Goldman Sachs 2011 Form 10-K | 159 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Consolidated VIEs
Consolidated VIEs | ||||||||||||||||
As of December 2011 | ||||||||||||||||
in millions | Real estate, credit-related and other investing |
CDOs, mortgage-backed and other asset-backed |
Principal- protected notes |
Total | ||||||||||||
Assets |
||||||||||||||||
Cash and cash equivalents |
$ | 660 | $ | 51 | $ | 1 | $ | 712 | ||||||||
Cash and securities segregated for regulatory and other purposes |
139 | | | 139 | ||||||||||||
Receivables from brokers, dealers and clearing organizations |
4 | | | 4 | ||||||||||||
Receivables from customers and counterparties |
| 16 | | 16 | ||||||||||||
Financial instruments owned, at fair value |
2,369 | 352 | 112 | 2,833 | ||||||||||||
Other assets |
1,552 | 437 | | 1,989 | ||||||||||||
Total |
$ | 4,724 | $ | 856 | $ | 113 | $ | 5,693 | ||||||||
Liabilities |
||||||||||||||||
Other secured financings |
$ | 1,418 | $ | 298 | $ | 3,208 | $ | 4,924 | ||||||||
Payables to customers and counterparties |
| 9 | | 9 | ||||||||||||
Financial instruments sold, but not yet purchased, at fair value |
| | 2 | 2 | ||||||||||||
Unsecured short-term borrowings, including the current portion of |
185 | | 1,941 | 2,126 | ||||||||||||
Unsecured long-term borrowings |
4 | | 269 | 273 | ||||||||||||
Other liabilities and accrued expenses |
2,046 | 40 | | 2,086 | ||||||||||||
Total |
$ | 3,653 | $ | 347 | $ | 5,420 | $ | 9,420 |
160 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Consolidated VIEs | ||||||||||||||||||||
As of December 2010 | ||||||||||||||||||||
in millions | Real estate, credit-related and other investing |
Municipal bond securitizations |
CDOs, mortgage-backed asset-backed |
Principal- protected notes |
Total | |||||||||||||||
Assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 248 | $ | | $ | 39 | $ | 52 | $ | 339 | ||||||||||
Cash and securities segregated for regulatory and other purposes |
205 | | | | 205 | |||||||||||||||
Receivables from brokers, dealers and clearing organizations |
4 | | | | 4 | |||||||||||||||
Receivables from customers and counterparties |
1 | | 27 | | 28 | |||||||||||||||
Financial instruments owned, at fair value |
2,531 | 547 | 550 | 648 | 4,276 | |||||||||||||||
Other assets |
3,369 | | 499 | | 3,868 | |||||||||||||||
Total |
$ | 6,358 | $ | 547 | $ | 1,115 | $ | 700 | $ | 8,720 | ||||||||||
Liabilities |
||||||||||||||||||||
Other secured financings |
$ | 2,434 | $ | 630 | $ | 417 | $ | 3,224 | $ | 6,705 | ||||||||||
Payables to customers and counterparties |
| | 12 | | 12 | |||||||||||||||
Financial instruments sold, but not yet purchased, at fair value |
| | 55 | | 55 | |||||||||||||||
Unsecured short-term borrowings, including the current portion of unsecured long-term borrowings |
302 | | | 2,359 | 2,661 | |||||||||||||||
Unsecured long-term borrowings |
6 | | | | 6 | |||||||||||||||
Other liabilities and accrued expenses |
2,004 | | 32 | | 2,036 | |||||||||||||||
Total |
$ | 4,746 | $ | 630 | $ | 516 | $ | 5,583 | $ | 11,475 |
Goldman Sachs 2011 Form 10-K | 161 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Other Assets
Other Assets
162 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 163 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Identifiable Intangible Assets
As of December | ||||||||||||
$ in millions | 2011 | Weighted Average Remaining Lives (years) |
2010 | |||||||||
Customer lists |
Gross carrying amount | $ | 1,119 | $ | 1,104 | |||||||
Accumulated amortization | (593 | ) | (529 | ) | ||||||||
Net carrying amount | $ | 526 | 9 | $ | 575 | |||||||
Commodities-related intangibles 1 |
Gross carrying amount | $ | 595 | $ | 667 | |||||||
Accumulated amortization | (237 | ) | (52 | ) | ||||||||
Net carrying amount | $ | 358 | 11 | $ | 615 | |||||||
Broadcast royalties 2 |
Gross carrying amount | $ | 560 | $ | 560 | |||||||
Accumulated amortization | (123 | ) | (61 | ) | ||||||||
Net carrying amount | $ | 437 | 7 | $ | 499 | |||||||
Insurance-related intangibles 3 |
Gross carrying amount | $ | 292 | $ | 292 | |||||||
Accumulated amortization | (146 | ) | (146 | ) | ||||||||
Net carrying amount | $ | 146 | 7 | $ | 146 | |||||||
Other 4 |
Gross carrying amount | $ | 950 | $ | 953 | |||||||
Accumulated amortization | (751 | ) | (761 | ) | ||||||||
Net carrying amount | $ | 199 | 12 | $ | 192 | |||||||
Total |
Gross carrying amount | $ | 3,516 | $ | 3,576 | |||||||
Accumulated amortization | (1,850 | ) | (1,549 | ) | ||||||||
Net carrying amount | $ | 1,666 | 9 | $ | 2,027 |
1. | Primarily includes commodity-related customer contracts and relationships, permits and access rights. |
2. | Represents television broadcast royalties held by a consolidated VIE. |
3. | Represents value of business acquired related to the firms insurance businesses. |
4. | Primarily includes the firms New York Stock Exchange (NYSE) Designated Market Maker (DMM) rights and exchange-traded fund lead market maker rights. |
164 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 165 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
166 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Long-Term Borrowings
Long-Term Borrowings
Long-term borrowings were comprised of the following:
As of December | ||||||||
in millions | 2011 | 2010 | ||||||
Other secured financings (long-term) |
$ | 8,179 | $ | 13,848 | ||||
Unsecured long-term borrowings |
173,545 | 174,399 | ||||||
Total |
$ | 181,724 | $ | 188,247 |
As of December 2011 | As of December 2010 | |||||||||||||||||||||||||
in millions | U.S. Dollar |
Non-U.S. Dollar |
Total | U.S. Dollar |
Non-U.S. Dollar |
Total | ||||||||||||||||||||
Fixed-rate obligations 1 Group Inc. |
$ | 82,396 | $ | 38,012 | $ | 120,408 | $ | 81,192 | $ | 35,353 | $ | 116,545 | ||||||||||||||
Subsidiaries |
1,662 | 557 | 2,219 | 1,622 | 532 | 2,154 | ||||||||||||||||||||
Floating-rate obligations 2 Group Inc. |
19,936 | 25,878 | 45,814 | 23,700 | 27,374 | 51,074 | ||||||||||||||||||||
Subsidiaries |
3,500 | 1,604 | 5,104 | 3,616 | 1,010 | 4,626 | ||||||||||||||||||||
Total 3 |
$ | 107,494 | $ | 66,051 | $ | 173,545 | $ | 110,130 | $ | 64,269 | $ | 174,399 |
1. | Interest rates on U.S. dollar-denominated debt ranged from 0.10% to 10.04% (with a weighted average rate of 5.62%) and 0.20% to 10.04% (with a weighted average rate of 5.52%) as of December 2011 and December 2010, respectively. Interest rates on non-U.S. dollar-denominated debt ranged from 0.85% to 14.85% (with a weighted average rate of 4.75%) and 0.85% to 14.85% (with a weighted average rate of 4.65%) as of December 2011 and December 2010, respectively. |
2. | Floating interest rates generally are based on LIBOR or the federal funds target rate. Equity-linked and indexed instruments are included in floating-rate obligations. |
3. | Includes $0 and $8.58 billion as of December 2011 and December 2010, respectively, guaranteed by the FDIC under the TLGP. |
Goldman Sachs 2011 Form 10-K | 167 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
As of December 2011 | As of December 2010 | |||||||||||||||||||||||||||||
in millions | Group Inc. | Subsidiaries | Total | Group Inc. | Subsidiaries | Total | ||||||||||||||||||||||||
Fixed-rate obligations |
||||||||||||||||||||||||||||||
At fair value |
$ | 10 | $ | 66 | $ | 76 | $ | 16 | $ | 6 | $ | 22 | ||||||||||||||||||
At amortized cost 1, 2 |
26,839 | 1,934 | 28,773 | 3,956 | 1,921 | 5,877 | ||||||||||||||||||||||||
Floating-rate obligations At fair value |
12,903 | 4,183 | 17,086 | 13,428 | 4,720 | 18,148 | ||||||||||||||||||||||||
At amortized cost 1, 2 |
126,470 | 1,140 | 127,610 | 150,219 | 133 | 150,352 | ||||||||||||||||||||||||
Total |
$ | 166,222 | $ | 7,323 | $ | 173,545 | $ | 167,619 | $ | 6,780 | $ | 174,399 |
1. | The weighted average interest rates on the aggregate amounts were 2.59% (5.18% related to fixed-rate obligations and 2.03% related to floating-rate obligations) and 1.90% (5.69% related to fixed-rate obligations and 1.74% related to floating-rate obligations) as of December 2011 and December 2010, respectively. These rates exclude financial instruments accounted for at fair value under the fair value option. |
2. | During 2011, certain fair value hedges were de-designated resulting in a larger portion of fixed-rate debt carried at amortized cost. |
168 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Subordinated Borrowings
As of December 2011 | As of December 2010 | |||||||||||||||||||||||||
in millions | Par Amount |
Carrying Amount |
Rate 1 | Par Amount |
Carrying Amount |
Rate 1 | ||||||||||||||||||||
Subordinated debt 2 |
$ | 14,310 | $17,362 | 4.39 | % 3 | $ | 14,345 | $ | 16,977 | 1.19 | % | |||||||||||||||
Junior subordinated debt |
5,085 | 6,533 | 2.43 | % | 5,082 | 5,716 | 2.50 | % | ||||||||||||||||||
Total subordinated borrowings |
$ | 19,395 | $23,895 | 3.87 | % | $ | 19,427 | $ | 22,693 | 1.54 | % |
1. | Weighted average interest rate after giving effect to fair value hedges used to convert these fixed-rate obligations into floating-rate obligations. See Note 7 for further information about hedging activities. See below for information about interest rates on junior subordinated debt. |
2. | Par amount and carrying amount of subordinated debt issued by Group Inc., was $13.75 billion and $16.80 billion, respectively, as of December 2011, and $13.81 billion and $16.44 billion, respectively, as of December 2010. |
3. | The increase in the weighted average interest rate as of December 2011 compared with December 2010 is primarily due to the de-designation of certain fair value hedges resulting in a larger portion of subordinated debt carried as a fixed-rate obligation. |
Junior Subordinated Debt
Goldman Sachs 2011 Form 10-K | 169 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
170 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Commitments, Contingencies and Guarantees
Commitments, Contingencies and Guarantees
Commitments
The table below presents the firms commitments.
Commitment Amount by Period of Expiration as of December 2011 |
Total Commitments as of December |
|||||||||||||||||||||||||
in millions | 2012 | 2013- 2014 |
2015- 2016 |
2017- Thereafter |
2011 | 2010 | ||||||||||||||||||||
Commitments to extend credit 1 Commercial lending: Investment-grade |
$ | 5,014 | $ | 4,266 | $ | 10,344 | $ | 45 | $ | 19,669 | $ | 12,330 | ||||||||||||||
Non-investment-grade |
1,585 | 3,939 | 7,608 | 761 | 13,893 | 11,919 | ||||||||||||||||||||
William Street credit extension program |
5,515 | 6,291 | 19,740 | 390 | 31,936 | 27,383 | ||||||||||||||||||||
Warehouse financing |
58 | 189 | | | 247 | 265 | ||||||||||||||||||||
Total commitments to extend credit |
12,172 | 14,685 | 37,692 | 1,196 | 65,745 | 51,897 | ||||||||||||||||||||
Contingent and forward starting resale and securities borrowing agreements 2 |
54,522 | | | | 54,522 | 46,886 | ||||||||||||||||||||
Forward starting repurchase and secured lending agreements 2 |
17,964 | | | | 17,964 | 12,509 | ||||||||||||||||||||
Underwriting commitments |
| | | | | 835 | ||||||||||||||||||||
Letters of credit 3 |
1,145 | 58 | 145 | 5 | 1,353 | 2,210 | ||||||||||||||||||||
Investment commitments |
2,455 | 4,764 | 439 | 1,460 | 9,118 | 11,093 | ||||||||||||||||||||
Other |
5,200 | 101 | 34 | 7 | 5,342 | 4,396 | ||||||||||||||||||||
Total commitments |
$ | 93,458 | $ | 19,608 | $ | 38,310 | $ | 2,668 | $ | 154,044 | $ | 129,826 |
1. | Commitments to extend credit are presented net of amounts syndicated to third parties. |
2. | These agreements generally settle within three business days. |
3. | Consists of commitments under letters of credit issued by various banks which the firm provides to counterparties in lieu of securities or cash to satisfy various collateral and margin deposit requirements. |
Commitments to Extend Credit
Goldman Sachs 2011 Form 10-K | 171 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
172 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Contingencies
Goldman Sachs 2011 Form 10-K | 173 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
174 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Guarantees
As of December 2011 | ||||||||||||||||||||||||
Maximum Payout/Notional Amount by Period of Expiration | ||||||||||||||||||||||||
in millions | Carrying Net Liability |
2012 | 2013- 2014 |
2015- 2016 |
2017- Thereafter |
Total | ||||||||||||||||||
Derivatives 1 |
$ | 11,881 | $ | 486,244 | $ | 206,853 | $ | 53,743 | $ | 49,576 | $ | 796,416 | ||||||||||||
Securities lending indemnifications 2 |
| 27,798 | | | | 27,798 | ||||||||||||||||||
Other financial guarantees 3 |
205 | 625 | 795 | 1,209 | 939 | 3,568 |
1. | These derivatives are risk managed together with derivatives that do not meet the definition of a guarantee, and therefore these amounts do not reflect the firms overall risk related to its derivative activities. As of December 2010, the carrying value of the net liability related to derivative guarantees was $8.26 billion. |
2. | Collateral held by the lenders in connection with securities lending indemnifications was $28.58 billion as of December 2011. Because the contractual nature of these arrangements requires the firm to obtain collateral with a market value that exceeds the value of the securities lent to the borrower, there is minimal performance risk associated with these guarantees. |
3. | Other financial guarantees excludes certain commitments to issue standby letters of credit that are included in Commitments to extend credit. See table in Commitments above for a summary of the firms commitments. As of December 2010, the carrying value of the net liability related to other financial guarantees was $28 million. |
Goldman Sachs 2011 Form 10-K | 175 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
176 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 177 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Preferred Equity
The table below presents perpetual preferred stock issued and outstanding.
Series | Shares Authorized |
Shares Issued |
Shares Outstanding |
Dividend Rate | Earliest Redemption Date |
Redemption (in millions) |
||||||||||||||||
A |
50,000 | 30,000 | 29,999 | 3 month LIBOR + 0.75%, with floor of 3.75% per annum |
April 25, 2010 | $ | 750 | |||||||||||||||
B |
50,000 | 32,000 | 32,000 | 6.20% per annum | October 31, 2010 | 800 | ||||||||||||||||
C |
25,000 | 8,000 | 8,000 | 3 month LIBOR + 0.75%, with floor of 4.00% per annum |
October 31, 2010 | 200 | ||||||||||||||||
D |
60,000 | 54,000 | 53,999 | 3 month LIBOR + 0.67%, with floor of 4.00% per annum |
May 24, 2011 | 1,350 | ||||||||||||||||
185,000 | 124,000 | 123,998 | $ | 3,100 |
178 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Year Ended December | ||||||||||||||||||||||||||||
2011 | 2010 |
2009 | ||||||||||||||||||||||||||
per share | in millions | per share | in millions | per share | in millions | |||||||||||||||||||||||
Series A |
$ | 950.51 | $ | 28 | $ | 950.51 | $ | 28 | $ | 710.94 | $ | 21 | ||||||||||||||||
Series B |
1,550.00 | 50 | 1,550.00 | 50 | 1,162.50 | 38 | ||||||||||||||||||||||
Series C |
1,013.90 | 8 | 1,013.90 | 8 | 758.34 | 6 | ||||||||||||||||||||||
Series D |
1,013.90 | 55 | 1,013.90 | 55 | 758.34 | 41 | ||||||||||||||||||||||
Series G 1 |
2,500.00 | 125 | 10,000.00 | 500 | 7,500.00 | 375 | ||||||||||||||||||||||
Series H 2 |
| | | | 12.50 | 125 | ||||||||||||||||||||||
Total |
$ | 266 | $ | 641 | $ | 606 |
1. | Amount for the year ended December 2011 excludes preferred dividends related to the redemption of the firms Series G Preferred Stock. |
2. | Amount for the year ended December 2009 excludes the preferred dividend related to the repurchase of the TARP Series H Preferred Stock, as well as accrued dividends paid on repurchase of the Series H Preferred Stock. |
Accumulated Other Comprehensive Income/(Loss)
The table below presents accumulated other comprehensive income/(loss) by type.
As of December | ||||||||
in millions | 2011 | 2010 | ||||||
Currency translation adjustment, net of tax |
$ | (225 | ) | $ | (170 | ) | ||
Pension and postretirement liability adjustments, net of tax |
(374 | ) | (229 | ) | ||||
Net unrealized gains on available-for-sale securities, net of tax 1 |
83 | 113 | ||||||
Total accumulated other comprehensive loss, net of tax |
$ | (516 | ) | $ | (286 | ) |
1. | Substantially all consists of net unrealized gains on securities held by the firms insurance subsidiaries as of both December 2011 and December 2010. |
Goldman Sachs 2011 Form 10-K | 179 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Regulation and Capital Adequacy
Regulation and Capital Adequacy
180 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Regulatory Reform
Goldman Sachs 2011 Form 10-K | 181 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
182 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 183 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Earnings Per Common Share
Earnings Per Common Share
Year Ended December | ||||||||||||
in millions, except per share amounts | 2011 | 2010 | 2009 | |||||||||
Numerator for basic and diluted EPS net earnings applicable to common shareholders |
$ | 2,510 | $ | 7,713 | $ | 12,192 | ||||||
Denominator for basic EPS weighted average number of common shares |
524.6 | 542.0 | 512.3 | |||||||||
Effect of dilutive securities: RSUs |
14.6 | 15.0 | 15.7 | |||||||||
Stock options and warrants |
17.7 | 28.3 | 22.9 | |||||||||
Dilutive potential common shares |
32.3 | 43.3 | 38.6 | |||||||||
Denominator for diluted EPS weighted average number of common shares and dilutive potential common shares |
556.9 | 585.3 | 550.9 | |||||||||
Basic EPS |
$ | 4.71 | $ | 14.15 | $ | 23.74 | ||||||
Diluted EPS |
4.51 | 13.18 | 22.13 |
Year Ended December | ||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||
Number of antidilutive RSUs and common shares underlying antidilutive stock options and warrants |
9.2 | 6.2 | 24.7 |
184 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Transactions with Affiliated Funds
Transactions with Affiliated Funds
Goldman Sachs 2011 Form 10-K | 185 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Interest Income and Interest Expense
Interest Income and Interest Expense
Year Ended December | ||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||
Interest income |
||||||||||||
Deposits with banks |
$ | 125 | $ | 86 | $ | 65 | ||||||
Securities borrowed, securities purchased under agreements to resell and federal funds sold |
666 | 540 | 951 | |||||||||
Financial instruments owned, at fair value |
10,718 | 10,346 | 11,106 | |||||||||
Other interest 1 |
1,665 | 1,337 | 1,785 | |||||||||
Total interest income |
13,174 | 12,309 | 13,907 | |||||||||
Interest expense |
||||||||||||
Deposits |
280 | 304 | 415 | |||||||||
Securities loaned and securities sold under agreements to repurchase |
905 | 708 | 1,317 | |||||||||
Financial instruments sold, but not yet purchased, at fair value |
2,464 | 1,859 | 1,854 | |||||||||
Short-term borrowings 2 |
526 | 453 | 623 | |||||||||
Long-term borrowings 2 |
3,439 | 3,155 | 2,585 | |||||||||
Other interest 3 |
368 | 327 | (294 | ) | ||||||||
Total interest expense |
7,982 | 6,806 | 6,500 | |||||||||
Net interest income |
$ | 5,192 | $ | 5,503 | $ | 7,407 |
1. | Primarily includes interest income on customer debit balances and other interest-earning assets. |
2. | Includes interest on unsecured borrowings and other secured financings. |
3. | Primarily includes interest expense on customer credit balances and other interest-bearing liabilities. |
186 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Income Taxes
Income Taxes
Provision for Income Taxes
Year Ended December | ||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||
Current taxes |
||||||||||||
U.S. federal |
$ | 405 | $ | 1,791 | $ | 4,039 | ||||||
State and local |
392 | 325 | 594 | |||||||||
Non-U.S. |
204 | 1,083 | 2,242 | |||||||||
Total current tax expense |
1,001 | 3,199 | 6,875 | |||||||||
Deferred taxes |
||||||||||||
U.S. federal |
683 | 1,516 | (763 | ) | ||||||||
State and local |
24 | 162 | (130 | ) | ||||||||
Non-U.S. |
19 | (339 | ) | 462 | ||||||||
Total deferred tax (benefit)/expense |
726 | 1,339 | (431 | ) | ||||||||
Provision for taxes |
$ | 1,727 | $ | 4,538 | $ | 6,444 | ||||||
Year Ended December | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
U.S. federal statutory income tax rate |
35.0 | % | 35.0 | % | 35.0 | % | ||||||
State and local taxes, net of U.S. federal income tax effects |
4.4 | 2.5 | 1.5 | |||||||||
Tax credits |
(1.6 | ) | (0.7 | ) | (0.3 | ) | ||||||
Non-U.S. operations |
(6.7 | ) | (2.3 | ) | (3.5 | ) | ||||||
Tax-exempt income, including dividends |
(2.4 | ) | (1.0 | ) | (0.4 | ) | ||||||
Other |
(0.7 | ) | 1.7 | 1 | 0.2 | |||||||
Effective income tax rate |
28.0 | % | 35.2 | % | 32.5 | % |
1. | Primarily includes the effect of the SEC settlement of $550 million, substantially all of which is non-deductible. |
Goldman Sachs 2011 Form 10-K | 187 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Deferred Income Taxes
As of December | ||||||||
in millions | 2011 | 2010 | ||||||
Deferred tax assets |
||||||||
Compensation and benefits |
$ | 3,126 | $ | 3,397 | ||||
Unrealized losses |
849 | 731 | ||||||
ASC 740 asset related to unrecognized tax benefits |
569 | 972 | ||||||
Non-U.S. operations |
662 | 652 | ||||||
Foreign tax credits |
12 | 11 | ||||||
Net operating losses |
213 | 250 | ||||||
Occupancy-related |
110 | 129 | ||||||
Other comprehensive income-related |
168 | 68 | ||||||
Other, net |
581 | 473 | ||||||
6,290 | 6,683 | |||||||
Valuation allowance 1 |
(65 | ) | (50 | ) | ||||
Total deferred tax assets 2 |
$ | 6,225 | $ | 6,633 | ||||
Depreciation and amortization |
1,959 | 1,647 | ||||||
Other comprehensive income-related |
36 | 130 | ||||||
Total deferred tax liabilities 2 |
$ | 1,995 | $ | 1,777 |
1. | Relates primarily to the ability to utilize losses in various tax jurisdictions. |
2. | Before netting within tax jurisdictions. |
188 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
As of December | ||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||
Balance, beginning of year |
$ | 2,081 | $ | 1,925 | $ | 1,548 | ||||||
Increases based on tax positions related to the current year |
171 | 171 | 143 | |||||||||
Increases based on tax positions related to prior years |
278 | 162 | 379 | |||||||||
Decreases related to tax positions of prior years |
(41 | ) | (104 | ) | (19 | ) | ||||||
Decreases related to settlements |
(638 | ) | (128 | ) | (91 | ) | ||||||
Acquisitions/(dispositions) |
47 | 56 | | |||||||||
Exchange rate fluctuations |
(11 | ) | (1 | ) | (35 | ) | ||||||
Balance, end of year |
$ | 1,887 | $ | 2,081 | $ | 1,925 | ||||||
Related deferred income tax asset 1 |
$ | 569 | $ | 972 | $ | 1,004 | ||||||
Net unrecognized tax benefit 2 |
1,318 | 1,109 | 921 |
1. | Included in Other assets. See Note 12. |
2. | If recognized, the net tax benefit would reduce the firms effective income tax rate. |
Goldman Sachs 2011 Form 10-K | 189 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
190 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
For the Years Ended or as of December | ||||||||||||||
in millions | 2011 | 2010 | 2009 | |||||||||||
Investment Banking |
Net revenues | $ | 4,355 | $ | 4,810 | $ | 4,984 | |||||||
Operating expenses |
2,962 | 3,511 | 3,482 | |||||||||||
Pre-tax earnings |
$ | 1,393 | $ | 1,299 | $ | 1,502 | ||||||||
Segment assets |
$ | 1,690 | $ | 1,870 | $ | 1,759 | ||||||||
Institutional Client Services |
Net revenues 1 | $ | 17,280 | $ | 21,796 | $ | 32,719 | |||||||
Operating expenses |
12,697 | 14,291 | 13,691 | |||||||||||
Pre-tax earnings |
$ | 4,583 | $ | 7,505 | $ | 19,028 | ||||||||
Segment assets |
$ | 834,780 | $ | 819,765 | $ | 751,851 | ||||||||
Investing & Lending |
Net revenues | $ | 2,142 | $ | 7,541 | $ | 2,863 | |||||||
Operating expenses |
2,673 | 3,361 | 3,523 | |||||||||||
Pre-tax earnings/(loss) |
$ | (531 | ) | $ | 4,180 | $ | (660 | ) | ||||||
Segment assets |
$ | 76,753 | $ | 78,771 | $ | 83,851 | ||||||||
Investment Management |
Net revenues | $ | 5,034 | $ | 5,014 | $ | 4,607 | |||||||
Operating expenses |
4,018 | 4,051 | 3,673 | |||||||||||
Pre-tax earnings |
$ | 1,016 | $ | 963 | $ | 934 | ||||||||
Segment assets |
$ | 10,002 | $ | 10,926 | $ | 11,481 | ||||||||
Total |
Net revenues | $ | 28,811 | $ | 39,161 | $ | 45,173 | |||||||
Operating expenses |
22,642 | 26,269 | 25,344 | |||||||||||
Pre-tax earnings |
$ | 6,169 | $ | 12,892 | $ | 19,829 | ||||||||
Total assets |
$ | 923,225 | $ | 911,332 | $ | 848,942 |
1. | Includes $115 million, $111 million and $36 million for the years ended December 2011, December 2010 and December 2009, respectively, of realized gains on available-for-sale securities held in the firms insurance subsidiaries. |
Goldman Sachs 2011 Form 10-K | 191 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
192 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Year Ended December | ||||||||||||||||||||||||
$ in millions | 2011 | 2010 | 2009 | |||||||||||||||||||||
Net revenues Americas 1 |
$ | 17,873 | 62 | % | $ | 21,564 | 55 | % | $ | 25,313 | 56 | % | ||||||||||||
EMEA 2 |
7,074 | 25 | 10,449 | 27 | 11,595 | 26 | ||||||||||||||||||
Asia 3, 4 |
3,864 | 13 | 7,148 | 18 | 8,265 | 18 | ||||||||||||||||||
Total net revenues |
$ | 28,811 | 100 | % | $ | 39,161 | 100 | % | $ | 45,173 | 100 | % | ||||||||||||
Pre-tax earnings Americas 1 |
$ | 5,466 | 85 | % | $ | 7,934 | 57 | % | $ | 11,461 | 56 | % | ||||||||||||
EMEA 2 |
1,226 | 19 | 3,080 | 22 | 5,508 | 26 | ||||||||||||||||||
Asia 3 |
(231 | ) | (4 | ) | 2,933 | 21 | 3,835 | 18 | ||||||||||||||||
Subtotal |
6,461 | 100 | % | 13,947 | 100 | % | 20,804 | 100 | % | |||||||||||||||
Corporate 5 |
(292 | ) | (1,055 | ) | (975 | ) | ||||||||||||||||||
Total pre-tax earnings |
$ | 6,169 | $ | 12,892 | $ | 19,829 | ||||||||||||||||||
Net earnings Americas 1 |
$ | 3,624 | 78 | % | $ | 4,917 | 53 | % | $ | 7,120 | 51 | % | ||||||||||||
EMEA 2 |
1,117 | 24 | 2,236 | 24 | 4,201 | 30 | ||||||||||||||||||
Asia 3 |
(103 | ) | (2 | ) | 2,083 | 23 | 2,689 | 19 | ||||||||||||||||
Subtotal |
4,638 | 100 | % | 9,236 | 100 | % | 14,010 | 100 | % | |||||||||||||||
Corporate |
(196 | ) | (882 | ) | (625 | ) | ||||||||||||||||||
Total net earnings |
$ | 4,442 | $ | 8,354 | $ | 13,385 |
1. | Substantially all relates to the U.S. |
2. | EMEA (Europe, Middle East and Africa). Pre-tax earnings and net earnings include the impact of the U.K. bank payroll tax for the year ended December 2010. |
3. | Asia also includes Australia and New Zealand. |
4. | The decline in net revenues in Asia compared with 2010 primarily reflects lower results in Investing & Lending, principally due to losses from public equities, reflecting a significant decline in equity markets in Asia during 2011. |
5. | Consists of net provisions for a number of litigation and regulatory proceedings of $175 million, $682 million and $104 million for the years ended December 2011, December 2010 and December 2009, respectively; charitable contributions of $103 million, $345 million and $810 million for the years ended December 2011, December 2010 and December 2009, respectively; and real estate-related exit costs of $14 million, $28 million and $61 million for the years ended December 2011, December 2010 and December 2009, respectively. |
Goldman Sachs 2011 Form 10-K | 193 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Credit Concentrations
Credit Concentrations
194 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Legal Proceedings
Legal Proceedings
Goldman Sachs 2011 Form 10-K | 195 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
196 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 197 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
198 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 199 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
200 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 201 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
202 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 203 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
204 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 205 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
206 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Goldman Sachs 2011 Form 10-K | 207 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Employee Benefit Plans
Employee Benefit Plans
208 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Employee Incentive Plans
Employee Incentive Plans
Goldman Sachs 2011 Form 10-K | 209 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Restricted Stock Units Outstanding |
Weighted Average Grant-Date Fair Value of Restricted Stock Units Outstanding |
|||||||||||||||||
Future Service |
No Future Service Required |
Future Service |
No Future Service Required |
|||||||||||||||
Outstanding, December 2010 |
21,455,793 | 39,537,417 | $ | 124.17 | $ | 145.13 | ||||||||||||
Granted 1, 2 |
10,250,856 | 7,156,834 | 139.47 | 143.70 | ||||||||||||||
Forfeited |
(1,258,410 | ) | (183,858 | ) | 128.29 | 133.15 | ||||||||||||
Delivered 3 |
| (31,815,863 | ) | | 152.28 | |||||||||||||
Vested 2 |
(16,146,050 | ) | 16,146,050 | 119.99 | 119.99 | |||||||||||||
Outstanding, December 2011 |
14,302,189 | 4 | 30,840,580 | 139.46 | 124.33 |
1. | The weighted average grant-date fair value of RSUs granted during the years ended December 2011, December 2010 and December 2009 was $141.21, $132.64 and $151.31, respectively. The fair value of the RSUs granted during the year ended December 2011 and December 2010 includes a liquidity discount of 12.7% and 13.2%, respectively, to reflect post-vesting transfer restrictions of up to 4 years. |
2. | The aggregate fair value of awards that vested during the years ended December 2011, December 2010 and December 2009 was $2.40 billion, $4.07 billion and $2.18 billion, respectively. |
3. | Includes RSUs that were cash settled. |
4. | Includes 754,482 shares of restricted stock subject to future service requirements. |
Options Outstanding |
Weighted Average Exercise Price |
Aggregate Intrinsic Value (in millions) |
Weighted Average (years) |
|||||||||||||
Outstanding, December 2010 |
55,247,865 | $ | 96.71 | $ | 4,152 | 6.25 | ||||||||||
Exercised |
(4,289,438 | ) | 89.49 | |||||||||||||
Forfeited |
(10,743 | ) | 79.73 | |||||||||||||
Expired |
(3,690,746 | ) | 91.61 | |||||||||||||
Outstanding, December 2011 |
47,256,938 | 97.76 | 444 | 6.08 | ||||||||||||
Exercisable, December 2011 |
35,699,815 | 103.83 | 310 | 5.79 |
210 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Exercise Price | Options Outstanding |
Weighted Average Exercise Price |
Weighted Average (years) | |||||||||
$ 75.00 - $89.99 | 38,119,258 | $ 78.79 | 6.37 | |||||||||
90.00 - 104.99 | 290,056 | 96.08 | 1.92 | |||||||||
105.00 - 119.99 | | | | |||||||||
120.00 - 134.99 | 2,791,500 | 131.64 | 3.92 | |||||||||
135.00 - 149.99 | | | | |||||||||
150.00 - 164.99 | 75,000 | 154.16 | 2.17 | |||||||||
165.00 - 194.99 | | | | |||||||||
195.00 - 209.99 | 5,981,124 | 202.27 | 5.48 | |||||||||
|
Outstanding, December 2011 |
47,256,938 |
Year Ended December | ||||||||||
2011 | 2010 | 2009 | ||||||||
Risk-free interest rate |
N/A | 1.6 | % | N/A | ||||||
Expected volatility |
N/A | 32.5 | N/A | |||||||
Annual dividend per share |
N/A | $1.40 | N/A | |||||||
Expected life |
N/A | 3.75 years | N/A |
Year Ended December | ||||||||||
in millions | 2011 | 2010 | 2009 | |||||||
Share-based compensation |
$ | 2,843 | $ | 4,070 | $2,030 | |||||
Excess tax benefit related to options exercised |
55 | 183 | 166 | |||||||
Excess tax benefit/(provision) related to share-based awards 1 |
138 | 239 | (793) |
1. | Represents the tax benefit/(provision) recognized in additional paid-in capital on stock options exercised and the delivery of common stock underlying share-based awards. |
Goldman Sachs 2011 Form 10-K | 211 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Parent Company
Parent Company
212 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
Three Months Ended | ||||||||||||||||
in millions, except per share data | December 2011 |
September 2011 |
June 2011 |
March 2011 |
||||||||||||
Total non-interest revenues |
$4,984 | $2,231 | $5,868 | $10,536 | ||||||||||||
Interest income |
3,032 | 3,354 | 3,681 | 3,107 | ||||||||||||
Interest expense |
1,967 | 1,998 | 2,268 | 1,749 | ||||||||||||
Net interest income |
1,065 | 1,356 | 1,413 | 1,358 | ||||||||||||
Net revenues, including net interest income |
6,049 | 3,587 | 7,281 | 11,894 | ||||||||||||
Operating expenses 1 |
4,802 | 4,317 | 5,669 | 7,854 | ||||||||||||
Pre-tax earnings/(loss) |
1,247 | (730 | ) | 1,612 | 4,040 | |||||||||||
Provision/(benefit) for taxes |
234 | (337 | ) | 525 | 1,305 | |||||||||||
Net earnings/(loss) |
1,013 | (393 | ) | 1,087 | 2,735 | |||||||||||
Preferred stock dividends |
35 | 35 | 35 | 1,827 | ||||||||||||
Net earnings/(loss) applicable to common shareholders |
$ 978 | $ (428 | ) | $1,052 | $ 908 | |||||||||||
Earnings/(loss) per common share |
||||||||||||||||
Basic |
$ 1.91 | $ (0.84 | ) | $ 1.96 | $ 1.66 | |||||||||||
Diluted |
1.84 | (0.84 | ) | 1.85 | 1.56 | |||||||||||
Dividends declared per common share |
0.35 | 0.35 | 0.35 | 0.35 | ||||||||||||
Three Months Ended | ||||||||||||||||
in millions, except per share data | December 2010 |
September 2010 |
June 2010 |
March 2010 |
||||||||||||
Total non-interest revenues |
$7,304 | $7,775 | $7,222 | $11,357 | ||||||||||||
Interest income |
3,069 | 2,937 | 3,302 | 3,001 | ||||||||||||
Interest expense |
1,731 | 1,809 | 1,683 | 1,583 | ||||||||||||
Net interest income |
1,338 | 1,128 | 1,619 | 1,418 | ||||||||||||
Net revenues, including net interest income |
8,642 | 8,903 | 8,841 | 12,775 | ||||||||||||
Operating expenses 1 |
5,168 | 6,092 | 7,393 | 7,616 | ||||||||||||
Pre-tax earnings |
3,474 | 2,811 | 1,448 | 5,159 | ||||||||||||
Provision for taxes |
1,087 | 913 | 835 | 1,703 | ||||||||||||
Net earnings |
2,387 | 1,898 | 613 | 3,456 | ||||||||||||
Preferred stock dividends |
160 | 161 | 160 | 160 | ||||||||||||
Net earnings applicable to common shareholders |
$2,227 | $1,737 | $ 453 | $ 3,296 | ||||||||||||
Earnings per common share |
||||||||||||||||
Basic |
$ 4.10 | $ 3.19 | $ 0.82 | $ 6.02 | ||||||||||||
Diluted |
3.79 | 2.98 | 0.78 | 5.59 | ||||||||||||
Dividends declared per common share |
0.35 | 0.35 | 0.35 | 0.35 |
1. | The timing and magnitude of changes in the firms discretionary compensation accruals can have a significant effect on results in a given quarter. |
Goldman Sachs 2011 Form 10-K | 213 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
The table below presents the high and low sales prices per share of the firms common stock.
Year Ended December | ||||||||||||||||||||||||||||
2011 | 2010 | 2009 | ||||||||||||||||||||||||||
High | Low | High | Low | High | Low | |||||||||||||||||||||||
First quarter |
$ | 175.34 | $ | 153.26 | $ | 178.75 | $ | 147.81 | $ | 115.65 | $ | 59.13 | ||||||||||||||||
Second quarter |
164.40 | 128.30 | 186.41 | 131.02 | 151.17 | 100.46 | ||||||||||||||||||||||
Third quarter |
139.25 | 91.40 | 157.25 | 129.50 | 188.00 | 135.23 | ||||||||||||||||||||||
Fourth quarter |
118.07 | 84.27 | 171.61 | 144.70 | 193.60 | 160.20 |
Common Stock Price Performance
11/24/06 | 11/30/07 | 11/28/08 | 12/31/09 | 12/31/10 | 12/31/11 | |||||||||||||||||||
The Goldman Sachs Group, Inc. |
$ | 100.00 | $ | 113.17 | $ | 39.79 | $ | 86.10 | $ | 86.56 | $ | 47.09 | ||||||||||||
S&P 500 Index |
100.00 | 107.77 | 66.72 | 85.28 | 98.12 | 100.19 | ||||||||||||||||||
S&P 500 Financials Index |
100.00 | 88.54 | 37.56 | 43.92 | 49.27 | 40.88 |
1. | As a result of the firms change in fiscal year-end during 2009, this table includes 61 months beginning November 24, 2006 and ending December 31, 2011. |
214 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
As of or for the | ||||||||||||||||||||||||||||||
Year Ended | One Month Ended | |||||||||||||||||||||||||||||
December 2011 |
December 2010 |
December 2009 |
November 2008 |
November 2007 |
December 2008 1 | |||||||||||||||||||||||||
Income statement data (in millions) |
||||||||||||||||||||||||||||||
Total non-interest revenues |
$ | 23,619 | $ | 33,658 | $ | 37,766 | $ | 17,946 | $ | 42,000 | $ | (502 | ) | |||||||||||||||||
Interest income |
13,174 | 12,309 | 13,907 | 35,633 | 45,968 | 1,687 | ||||||||||||||||||||||||
Interest expense |
7,982 | 6,806 | 6,500 | 31,357 | 41,981 | 1,002 | ||||||||||||||||||||||||
Net interest income |
5,192 | 5,503 | 7,407 | 4,276 | 3,987 | 685 | ||||||||||||||||||||||||
Net revenues, including net interest income |
28,811 | 39,161 | 45,173 | 22,222 | 45,987 | 183 | ||||||||||||||||||||||||
Compensation and benefits |
12,223 | 15,376 | 16,193 | 10,934 | 20,190 | 744 | ||||||||||||||||||||||||
U.K. bank payroll tax |
| 465 | | | | | ||||||||||||||||||||||||
Other operating expenses |
10,419 | 10,428 | 9,151 | 8,952 | 8,193 | 697 | ||||||||||||||||||||||||
Pre-tax earnings/(loss) |
$ | 6,169 | $ | 12,892 | $ | 19,829 | $ | 2,336 | $ | 17,604 | $ | (1,258 | ) | |||||||||||||||||
Balance sheet data (in millions) |
||||||||||||||||||||||||||||||
Total assets |
$ | 923,225 | $ | 911,332 | $ | 848,942 | $ | 884,547 | $ | 1,119,796 | $ | 1,112,225 | ||||||||||||||||||
Other secured financings (long-term) |
8,179 | 13,848 | 11,203 | 17,458 | 33,300 | 18,413 | ||||||||||||||||||||||||
Unsecured long-term borrowings |
173,545 | 174,399 | 185,085 | 168,220 | 164,174 | 185,564 | ||||||||||||||||||||||||
Total liabilities |
852,846 | 833,976 | 778,228 | 820,178 | 1,076,996 | 1,049,171 | ||||||||||||||||||||||||
Total shareholders equity |
70,379 | 77,356 | 70,714 | 64,369 | 42,800 | 63,054 | ||||||||||||||||||||||||
Common share data (in millions, except per share amounts) |
||||||||||||||||||||||||||||||
Earnings/(loss) per common share |
||||||||||||||||||||||||||||||
Basic |
$ | 4.71 | $ | 14.15 | $ | 23.74 | $ | 4.67 | $ | 26.34 | $ | (2.15 | ) | |||||||||||||||||
Diluted |
4.51 | 13.18 | 22.13 | 4.47 | 24.73 | (2.15 | ) | |||||||||||||||||||||||
Dividends declared per common share |
1.40 | 1.40 | 1.05 | 1.40 | 1.40 | 0.47 | 3 | |||||||||||||||||||||||
Book value per common share 2 |
130.31 | 128.72 | 117.48 | 98.68 | 90.43 | 95.84 | ||||||||||||||||||||||||
Average common shares outstanding |
||||||||||||||||||||||||||||||
Basic |
524.6 | 542.0 | 512.3 | 437.0 | 433.0 | 485.5 | ||||||||||||||||||||||||
Diluted |
556.9 | 585.3 | 550.9 | 456.2 | 461.2 | 485.5 | ||||||||||||||||||||||||
Selected data (unaudited) |
||||||||||||||||||||||||||||||
Total staff |
||||||||||||||||||||||||||||||
Americas |
17,200 | 19,900 | 18,900 | 19,700 | 20,100 | 19,200 | ||||||||||||||||||||||||
Non-Americas |
16,100 | 15,800 | 13,600 | 14,800 | 15,400 | 14,100 | ||||||||||||||||||||||||
Total staff |
33,300 | 35,700 | 32,500 | 34,500 | 35,500 | 33,300 | ||||||||||||||||||||||||
Total staff, including consolidated entities held for investment purposes |
34,700 | 38,700 | 36,200 | 39,200 | 40,000 | 38,000 | ||||||||||||||||||||||||
Assets under management (in billions) |
||||||||||||||||||||||||||||||
Asset class |
||||||||||||||||||||||||||||||
Alternative investments |
$ | 142 | $ | 148 | $ | 146 | $ | 146 | $ | 151 | $ | 145 | ||||||||||||||||||
Equity |
126 | 144 | 146 | 112 | 255 | 114 | ||||||||||||||||||||||||
Fixed income |
340 | 340 | 315 | 248 | 256 | 253 | ||||||||||||||||||||||||
Total non-money market assets |
608 | 632 | 607 | 506 | 662 | 512 | ||||||||||||||||||||||||
Money markets |
220 | 208 | 264 | 273 | 206 | 286 | ||||||||||||||||||||||||
Total assets under management |
$ | 828 | $ | 840 | $ | 871 | $ | 779 | $ | 868 | $ | 798 |
1. | In connection with becoming a bank holding company, the firm was required to change its fiscal year-end from November to December. December 2008 represents the period from November 29, 2008 to December 26, 2008. |
2. | Book value per common share is based on common shares outstanding, including RSUs granted to employees with no future service requirements, of 516.3 million, 546.9 million, 542.7 million, 485.4 million, 439.0 million and 485.9 million as of December 2011, December 2010, December 2009, November 2008, November 2007 and December 2008, respectively. |
3. | Rounded to the nearest penny. Exact dividend amount was $0.4666666 per common share and was reflective of a four-month period (December 2008 through March 2009), due to the change in the firms fiscal year-end. |
Goldman Sachs 2011 Form 10-K | 215 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
Distribution of Assets, Liabilities and Shareholders Equity
The table below presents a summary of consolidated average balances and interest rates.
For the Year Ended December | ||||||||||||||||||||||||||||||||||||||||
2011 | 2010 | 2009 | ||||||||||||||||||||||||||||||||||||||
in millions, except rates | Average balance |
Interest | Average rate |
Average balance |
Interest | Average rate |
Average balance |
Interest | Average rate |
|||||||||||||||||||||||||||||||
Assets |
||||||||||||||||||||||||||||||||||||||||
Deposits with banks |
$ | 38,039 | $ | 125 | 0.33 | % | $ | 29,371 | $ | 86 | 0.29 | % | $ | 22,108 | $ | 65 | 0.29 | % | ||||||||||||||||||||||
U.S. |
32,770 | 95 | 0.29 | 24,988 | 67 | 0.27 | 18,134 | 45 | 0.25 | |||||||||||||||||||||||||||||||
Non-U.S. |
5,269 | 30 | 0.57 | 4,383 | 19 | 0.43 | 3,974 | 20 | 0.50 | |||||||||||||||||||||||||||||||
Securities borrowed, securities purchased under agreements to resell, at fair value, and federal funds sold |
351,896 | 666 | 0.19 | 353,719 | 540 | 0.15 | 355,636 | 951 | 0.27 | |||||||||||||||||||||||||||||||
U.S. |
219,240 | (249 | ) | (0.11 | ) | 243,907 | 75 | 0.03 | 255,785 | 14 | 0.01 | |||||||||||||||||||||||||||||
Non-U.S. |
132,656 | 915 | 0.69 | 109,812 | 465 | 0.42 | 99,851 | 937 | 0.94 | |||||||||||||||||||||||||||||||
Financial instruments owned, at fair value 1, 2 |
287,322 | 10,718 | 3.73 | 273,801 | 10,346 | 3.78 | 277,706 | 11,106 | 4.00 | |||||||||||||||||||||||||||||||
U.S. |
183,920 | 7,477 | 4.07 | 189,136 | 7,865 | 4.16 | 198,849 | 8,429 | 4.24 | |||||||||||||||||||||||||||||||
Non-U.S. |
103,402 | 3,241 | 3.13 | 84,665 | 2,481 | 2.93 | 78,857 | 2,677 | 3.39 | |||||||||||||||||||||||||||||||
Other interest-earning assets 3 |
143,270 | 1,665 | 1.16 | 118,364 | 1,337 | 1.13 | 127,067 | 1,785 | 1.40 | |||||||||||||||||||||||||||||||
U.S. |
99,042 | 915 | 0.92 | 82,965 | 689 | 0.83 | 83,000 | 1,052 | 1.27 | |||||||||||||||||||||||||||||||
Non-U.S. |
44,228 | 750 | 1.70 | 35,399 | 648 | 1.83 | 44,067 | 733 | 1.66 | |||||||||||||||||||||||||||||||
Total interest-earning assets |
820,527 | 13,174 | 1.61 | 775,255 | 12,309 | 1.59 | 782,517 | 13,907 | 1.78 | |||||||||||||||||||||||||||||||
Cash and due from banks |
4,987 | 3,709 | 5,066 | |||||||||||||||||||||||||||||||||||||
Other non-interest-earning assets 2 |
118,901 | 113,310 | 124,554 | |||||||||||||||||||||||||||||||||||||
Total Assets |
$ | 944,415 | $ | 892,274 | $ | 912,137 | ||||||||||||||||||||||||||||||||||
Liabilities |
||||||||||||||||||||||||||||||||||||||||
Interest-bearing deposits |
$ | 40,266 | $ | 280 | 0.70 | $ | 38,011 | $ | 304 | 0.80 | $ | 41,076 | $ | 415 | 1.01 | |||||||||||||||||||||||||
U.S. |
33,234 | 243 | 0.73 | 31,418 | 279 | 0.89 | 35,043 | 371 | 1.06 | |||||||||||||||||||||||||||||||
Non-U.S. |
7,032 | 37 | 0.53 | 6,593 | 25 | 0.38 | 6,033 | 44 | 0.73 | |||||||||||||||||||||||||||||||
Securities loaned and securities sold under agreements to repurchase, at fair value |
171,753 | 905 | 0.53 | 160,280 | 708 | 0.44 | 156,794 | 1,317 | 0.84 | |||||||||||||||||||||||||||||||
U.S. |
110,235 | 280 | 0.25 | 112,839 | 355 | 0.31 | 111,718 | 392 | 0.35 | |||||||||||||||||||||||||||||||
Non-U.S. |
61,518 | 625 | 1.02 | 47,441 | 353 | 0.74 | 45,076 | 925 | 2.05 | |||||||||||||||||||||||||||||||
Financial instruments sold, but not yet purchased 1, 2 |
102,282 | 2,464 | 2.41 | 89,040 | 1,859 | 2.09 | 72,866 | 1,854 | 2.54 | |||||||||||||||||||||||||||||||
U.S. |
52,065 | 984 | 1.89 | 44,713 | 818 | 1.83 | 39,647 | 586 | 1.48 | |||||||||||||||||||||||||||||||
Non-U.S. |
50,217 | 1,480 | 2.95 | 44,327 | 1,041 | 2.35 | 33,219 | 1,268 | 3.82 | |||||||||||||||||||||||||||||||
Commercial paper |
1,881 | 5 | 0.24 | 1,624 | 5 | 0.31 | 1,002 | 5 | 0.50 | |||||||||||||||||||||||||||||||
U.S. |
630 | 2 | 0.31 | 289 | 1 | 0.35 | 284 | 3 | 1.06 | |||||||||||||||||||||||||||||||
Non-U.S. |
1,251 | 3 | 0.20 | 1,335 | 4 | 0.30 | 718 | 2 | 0.28 | |||||||||||||||||||||||||||||||
Other borrowings 4, 5 |
76,616 | 521 | 0.68 | 53,888 | 448 | 0.83 | 58,129 | 618 | 1.06 | |||||||||||||||||||||||||||||||
U.S. |
50,029 | 429 | 0.86 | 33,017 | 393 | 1.19 | 36,164 | 525 | 1.45 | |||||||||||||||||||||||||||||||
Non-U.S. |
26,587 | 92 | 0.35 | 20,871 | 55 | 0.26 | 21,965 | 93 | 0.42 | |||||||||||||||||||||||||||||||
Long-term borrowings 5, 6 |
186,148 | 3,439 | 1.85 | 193,031 | 3,155 | 1.63 | 203,280 | 2,585 | 1.27 | |||||||||||||||||||||||||||||||
U.S. |
179,004 | 3,235 | 1.81 | 183,338 | 2,910 | 1.59 | 192,054 | 2,313 | 1.20 | |||||||||||||||||||||||||||||||
Non-U.S. |
7,144 | 204 | 2.86 | 9,693 | 245 | 2.53 | 11,226 | 272 | 2.42 | |||||||||||||||||||||||||||||||
Other interest-bearing liabilities 7 |
203,940 | 368 | 0.18 | 189,008 | 327 | 0.17 | 207,148 | (294 | ) | (0.14 | ) | |||||||||||||||||||||||||||||
U.S. |
149,958 | (535 | ) | (0.36 | ) | 142,752 | (221 | ) | (0.15 | ) | 147,206 | (723 | ) | (0.49 | ) | |||||||||||||||||||||||||
Non-U.S. |
53,982 | 903 | 1.67 | 46,256 | 548 | 1.18 | 59,942 | 429 | 0.72 | |||||||||||||||||||||||||||||||
Total interest-bearing liabilities |
782,886 | 7,982 | 1.02 | 724,882 | 6,806 | 0.94 | 740,295 | 6,500 | 0.88 | |||||||||||||||||||||||||||||||
Non-interest-bearing deposits |
140 | 169 | 115 | |||||||||||||||||||||||||||||||||||||
Other non-interest-bearing liabilities 2 |
88,681 | 92,966 | 106,200 | |||||||||||||||||||||||||||||||||||||
Total liabilities |
871,707 | 818,017 | 846,610 | |||||||||||||||||||||||||||||||||||||
Shareholders equity |
||||||||||||||||||||||||||||||||||||||||
Preferred stock |
3,990 | 6,957 | 11,363 | |||||||||||||||||||||||||||||||||||||
Common stock |
68,718 | 67,300 | 54,164 | |||||||||||||||||||||||||||||||||||||
Total shareholders equity |
72,708 | 74,257 | 65,527 | |||||||||||||||||||||||||||||||||||||
Total liabilities, preferred stock and shareholders equity |
$ | 944,415 | $ | 892,274 | $ | 912,137 | ||||||||||||||||||||||||||||||||||
Interest rate spread |
0.59 | % | 0.65 | % | 0.90 | % | ||||||||||||||||||||||||||||||||||
Net interest income and net yield on interest-earning assets |
$ | 5,192 | 0.63 | $ | 5,503 | 0.71 | $ | 7,407 | 0.95 | |||||||||||||||||||||||||||||||
U.S. |
3,600 | 0.67 | 4,161 | 0.77 | 6,073 | 1.09 | ||||||||||||||||||||||||||||||||||
Non-U.S. |
1,592 | 0.56 | 1,342 | 0.57 | 1,334 | 0.59 | ||||||||||||||||||||||||||||||||||
Percentage of interest-earning assets and interest-bearing liabilities attributable to non-U.S. operations 8 |
||||||||||||||||||||||||||||||||||||||||
Assets |
34.80 | % | 30.22 | % | 28.98 | % | ||||||||||||||||||||||||||||||||||
Liabilities |
26.53 | 24.35 | 24.07 |
216 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
1. | Consists of cash financial instruments, including equity securities and convertible debentures. |
2. | Derivative instruments and commodities are included in other non-interest-earning assets and other non-interest-bearing liabilities. |
3. | Primarily consists of cash and securities segregated for regulatory and other purposes and certain receivables from customers and counterparties. |
4. | Consists of short-term other secured financings and unsecured short-term borrowings, excluding commercial paper. |
5. | Interest rates include the effects of interest rate swaps accounted for as hedges. |
6. | Consists of long-term secured financings and unsecured long-term borrowings. |
7. | Primarily consists of certain payables to customers and counterparties. |
8. | Assets, liabilities and interest are attributed to U.S. and non-U.S. based on the location of the legal entity in which the assets and liabilities are held. |
Goldman Sachs 2011 Form 10-K | 217 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
Changes in Net Interest Income, Volume and Rate Analysis
For the Year Ended | ||||||||||||||||||||||||||
December 2011 versus December 2010 | December 2010 versus December 2009 | |||||||||||||||||||||||||
Increase (decrease) due to change in: |
Increase (decrease) due to change in: |
|||||||||||||||||||||||||
in millions | Volume | Rate | Net change |
Volume | Rate | Net change |
||||||||||||||||||||
Interest-earning assets |
||||||||||||||||||||||||||
Deposits with banks |
$ 28 | $ 11 | $ 39 | $ 20 | $ 1 | $ 21 | ||||||||||||||||||||
U.S. |
23 | 5 | 28 | 18 | 4 | 22 | ||||||||||||||||||||
Non-U.S. |
5 | 6 | 11 | 2 | (3 | ) | (1 | ) | ||||||||||||||||||
Securities borrowed, securities purchased under agreements to resell, at fair value and federal funds sold |
186 | (60 | ) | 126 | 38 | (449 | ) | (411 | ) | |||||||||||||||||
U.S. |
28 | (352 | ) | (324 | ) | (4 | ) | 65 | 61 | |||||||||||||||||
Non-U.S. |
158 | 292 | 450 | 42 | (514 | ) | (472 | ) | ||||||||||||||||||
Financial instruments owned, at fair value |
375 | (3 | ) | 372 | (234 | ) | (526 | ) | (760 | ) | ||||||||||||||||
U.S. |
(212 | ) | (176 | ) | (388 | ) | (404 | ) | (160 | ) | (564 | ) | ||||||||||||||
Non-U.S. |
587 | 173 | 760 | 170 | (366 | ) | (196 | ) | ||||||||||||||||||
Other interest-earning assets |
299 | 29 | 328 | (159 | ) | (289 | ) | (448 | ) | |||||||||||||||||
U.S. |
149 | 77 | 226 | | (363 | ) | (363 | ) | ||||||||||||||||||
Non-U.S. |
150 | (48 | ) | 102 | (159 | ) | 74 | (85 | ) | |||||||||||||||||
Change in interest income |
888 | (23 | ) | 865 | (335 | ) | (1,263 | ) | (1,598 | ) | ||||||||||||||||
Interest-bearing liabilities |
||||||||||||||||||||||||||
Interest-bearing deposits |
15 | (39 | ) | (24 | ) | (30 | ) | (81 | ) | (111 | ) | |||||||||||||||
U.S. |
13 | (49 | ) | (36 | ) | (32 | ) | (60 | ) | (92 | ) | |||||||||||||||
Non-U.S. |
2 | 10 | 12 | 2 | (21 | ) | (19 | ) | ||||||||||||||||||
Securities loaned and securities sold under agreements to repurchase, at fair value |
136 | 61 | 197 | 22 | (631 | ) | (609 | ) | ||||||||||||||||||
U.S. |
(7 | ) | (68 | ) | (75 | ) | 4 | (41 | ) | (37 | ) | |||||||||||||||
Non-U.S. |
143 | 129 | 272 | 18 | (590 | ) | (572 | ) | ||||||||||||||||||
Financial instruments sold, but not yet purchased, at fair value |
313 | 292 | 605 | 354 | (349 | ) | 5 | |||||||||||||||||||
U.S. |
139 | 27 | 166 | 93 | 139 | 232 | ||||||||||||||||||||
Non-U.S. |
174 | 265 | 439 | 261 | (488 | ) | (227 | ) | ||||||||||||||||||
Commercial paper |
1 | (1 | ) | | 2 | (2 | ) | | ||||||||||||||||||
U.S. |
1 | | 1 | | (2 | ) | (2 | ) | ||||||||||||||||||
Non-U.S. |
| (1 | ) | (1 | ) | 2 | | 2 | ||||||||||||||||||
Other borrowings |
166 | (93 | ) | 73 | (40 | ) | (130 | ) | (170 | ) | ||||||||||||||||
U.S. |
146 | (110 | ) | 36 | (37 | ) | (95 | ) | (132 | ) | ||||||||||||||||
Non-U.S. |
20 | 17 | 37 | (3 | ) | (35 | ) | (38 | ) | |||||||||||||||||
Long-term debt |
(151 | ) | 435 | 284 | (177 | ) | 747 | 570 | ||||||||||||||||||
U.S. |
(78 | ) | 403 | 325 | (138 | ) | 735 | 597 | ||||||||||||||||||
Non-U.S. |
(73 | ) | 32 | (41 | ) | (39 | ) | 12 | (27 | ) | ||||||||||||||||
Other interest-bearing liabilities |
103 | (62 | ) | 41 | (155 | ) | 776 | 621 | ||||||||||||||||||
U.S. |
(26 | ) | (288 | ) | (314 | ) | 7 | 495 | 502 | |||||||||||||||||
Non-U.S. |
129 | 226 | 355 | (162 | ) | 281 | 119 | |||||||||||||||||||
Change in interest expense |
583 | 593 | 1,176 | (24 | ) | 330 | 306 | |||||||||||||||||||
Change in net interest income |
$305 | $(616 | ) | $(311 | ) | $(311 | ) | $(1,593 | ) | $(1,904 | ) |
218 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
Available-for-sale Securities Portfolio
The table below presents the fair value of available-for-sale securities.
in millions | Amortized Cost |
Gross Unrealized Gains |
Gross Unrealized Losses |
Fair Value |
||||||||||||
Available-for-sale securities, December 2011 |
||||||||||||||||
Commercial paper, certificates of deposit, time deposits and other money market instruments |
$ | 406 | $ | | $ | | $ | 406 | ||||||||
U.S. government and federal agency obligations |
582 | 80 | | 662 | ||||||||||||
Non-U.S. government obligations |
19 | | | 19 | ||||||||||||
Mortgage and other asset-backed loans and securities |
1,505 | 30 | (119 | ) | 1,416 | |||||||||||
Corporate debt securities |
1,696 | 128 | (11 | ) | 1,813 | |||||||||||
State and municipal obligations |
418 | 63 | | 481 | ||||||||||||
Other debt obligations |
67 | | (3 | ) | 64 | |||||||||||
Total available-for-sale securities |
$ | 4,693 | $ | 301 | $ | (133 | ) | $ | 4,861 | |||||||
Available-for-sale securities, December 2010 |
||||||||||||||||
Commercial paper, certificates of deposit, time deposits and other money market instruments |
$ | 176 | $ | | $ | | $ | 176 | ||||||||
U.S. government and federal agency obligations |
638 | 18 | (19 | ) | 637 | |||||||||||
Non-U.S. government obligations |
2 | | | 2 | ||||||||||||
Mortgage and other asset-backed loans and securities |
593 | 82 | (5 | ) | 670 | |||||||||||
Corporate debt securities |
1,533 | 162 | (7 | ) | 1,688 | |||||||||||
State and municipal obligations |
356 | 8 | (5 | ) | 359 | |||||||||||
Other debt obligations |
136 | 7 | (2 | ) | 141 | |||||||||||
Total available-for-sale securities |
$ | 3,434 | $ | 277 | $ | (38 | ) | $ | 3,673 |
Goldman Sachs 2011 Form 10-K | 219 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
As of December 2011 | ||||||||||||||||||||||||||||||||||||||||||||
Due in One Year or Less |
Due After One Year Through Five Years |
Due
After Five Years Through Ten Years |
Due After Ten Years |
Total | ||||||||||||||||||||||||||||||||||||||||
$ in millions | Amount | Yield | Amount | Yield | Amount | Yield | Amount | Yield | Amount | Yield | ||||||||||||||||||||||||||||||||||
Fair value of available-for-sale securities |
||||||||||||||||||||||||||||||||||||||||||||
Commercial paper, certificates of deposit, time deposits and other money market instruments |
$406 | | % | $ | | % | $ | | % | $ | | | % | $ | 406 | | % | |||||||||||||||||||||||||||
U.S. government and federal agency obligations |
72 | | 132 | 3 | 69 | 2 | 389 | 4 | 662 | 3 | ||||||||||||||||||||||||||||||||||
Non-U.S. government obligations |
| | 9 | 3 | 9 | 6 | 1 | 4 | 19 | 4 | ||||||||||||||||||||||||||||||||||
Mortgage and other asset-backed loans and securities |
| | 120 | 7 | 19 | 5 | 1,277 | 10 | 1,416 | 10 | ||||||||||||||||||||||||||||||||||
Corporate debt securities |
33 | 5 | 425 | 4 | 848 | 5 | 507 | 6 | 1,813 | 5 | ||||||||||||||||||||||||||||||||||
State and municipal obligations |
1 | 5 | 12 | 5 | | | 468 | 6 | 481 | 6 | ||||||||||||||||||||||||||||||||||
Other debt obligations |
| | 10 | 4 | | | 54 | 3 | 64 | 3 | ||||||||||||||||||||||||||||||||||
Total available-for-sale securities |
$512 | $708 | $945 | $ | 2,696 | $ | 4,861 | |||||||||||||||||||||||||||||||||||||
Amortized cost of available-for-sale securities |
$512 | $696 | $899 | $ | 2,586 | $ | 4,693 | |||||||||||||||||||||||||||||||||||||
As of December 2010 | ||||||||||||||||||||||||||||||||||||||||||||
Due in One Year or Less |
Due After One Year Through Five Years |
Due After Five Years Through Ten Years |
Due After Ten Years |
Total | ||||||||||||||||||||||||||||||||||||||||
$ in millions | Amount | Yield | Amount | Yield | Amount | Yield | Amount | Yield | Amount | Yield | ||||||||||||||||||||||||||||||||||
Fair value of available-for-sale securities |
||||||||||||||||||||||||||||||||||||||||||||
Commercial paper, certificates of deposit, time deposits and other money market instruments |
$176 | | % | $ | | % | $ | | % | $ | | | % | $ | 176 | | % | |||||||||||||||||||||||||||
U.S. government and federal agency obligations |
37 | 4 | 99 | 3 | 17 | 4 | 484 | 4 | 637 | 4 | ||||||||||||||||||||||||||||||||||
Non-U.S. government obligations |
| | 2 | 2 | | | | | 2 | 2 | ||||||||||||||||||||||||||||||||||
Mortgage and other asset-backed loans and securities |
| | | | | | 670 | 11 | 670 | 11 | ||||||||||||||||||||||||||||||||||
Corporate debt securities |
34 | 6 | 126 | 6 | 717 | 6 | 811 | 7 | 1,688 | 6 | ||||||||||||||||||||||||||||||||||
State and municipal obligations |
| | 10 | 5 | 11 | 5 | 338 | 6 | 359 | 6 | ||||||||||||||||||||||||||||||||||
Other debt obligations |
| | | | 24 | 1 | 117 | 5 | 141 | 4 | ||||||||||||||||||||||||||||||||||
Total available-for-sale securities |
$247 | $237 | $769 | $ | 2,420 | $ | 3,673 | |||||||||||||||||||||||||||||||||||||
Amortized cost of available-for-sale |
$246 | $220 | $708 | $ | 2,260 | $ | 3,434 |
220 | Goldman Sachs 2011 Form 10-K |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
Deposits
The table below presents a summary of the firms interest-bearing deposits.
Average Balances | Average Interest Rates | |||||||||||||||||||||||||
Year Ended December | Year Ended December | |||||||||||||||||||||||||
$ in millions | 2011 | 2010 | 2009 | 2011 | 2010 | 2009 | ||||||||||||||||||||
U.S.: |
||||||||||||||||||||||||||
Savings 1 |
$ | 25,916 | $ | 23,260 | $ | 23,024 | 0.42 | % | 0.44 | % | 0.62 | % | ||||||||||||||
Time |
7,318 | 8,158 | 12,019 | 1.84 | 2.16 | 1.89 | ||||||||||||||||||||
Total U.S. deposits |
33,234 | 31,418 | 35,043 | 0.73 | 0.89 | 1.06 | ||||||||||||||||||||
Non-U.S.: |
||||||||||||||||||||||||||
Demand |
5,378 | 5,559 | 5,402 | 0.46 | 0.34 | 0.61 | ||||||||||||||||||||
Time |
1,654 | 1,034 | 631 | 0.73 | 0.58 | 1.65 | ||||||||||||||||||||
Total Non-U.S. deposits |
7,032 | 6,593 | 6,033 | 0.53 | 0.38 | 0.73 | ||||||||||||||||||||
Total deposits |
$ | 40,266 | $ | 38,011 | $ | 41,076 | 0.70 | 0.80 | 1.01 |
1. | Amounts are available for withdrawal upon short notice, generally within seven days. |
Ratios
The table below presents selected financial ratios.
Year Ended December | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Net earnings to average assets |
0.5 | % | 0.9 | % | 1.5 | % | ||||||
Return on average common shareholders equity 1 |
3.7 | 11.5 | 22.5 | |||||||||
Return on average total shareholders equity 2 |
6.1 | 11.3 | 20.4 | |||||||||
Total average equity to average assets |
7.7 | 8.3 | 7.2 | |||||||||
Dividend payout ratio 3 |
31.0 | 10.6 | 4.7 |
1. | Based on net earnings applicable to common shareholders divided by average monthly common shareholders equity. |
2. | Based on net earnings divided by average monthly total shareholders equity. |
3. | Dividends declared per common share as a percentage of diluted earnings per common share. |
Short-term and Other Borrowed Funds
Securities Loaned and Securities Sold Under Agreements to Repurchase |
Commercial Paper | Other Funds Borrowed 1, 2 | ||||||||||||||||||||||||||||||||||||||
As of December | As of December | As of December | ||||||||||||||||||||||||||||||||||||||
$ in millions | 2011 | 2010 | 2009 | 2011 | 2010 | 2009 | 2011 | 2010 | 2009 | |||||||||||||||||||||||||||||||
Amounts outstanding at year-end |
$ | 171,684 | $ | 173,557 | $ | 143,567 | $ | 1,491 | $ | 1,306 | $ | 1,660 | $ | 76,732 | $ | 71,065 | $ | 48,787 | ||||||||||||||||||||||
Average outstanding during the year |
171,753 | 160,280 | 156,794 | 1,881 | 1,624 | 1,002 | 76,616 | 53,888 | 58,129 | |||||||||||||||||||||||||||||||
Maximum month-end outstanding |
190,453 | 173,557 | 169,083 | 2,853 | 1,712 | 3,060 | 84,546 | 71,065 | 77,712 | |||||||||||||||||||||||||||||||
Weighted average interest rate |
||||||||||||||||||||||||||||||||||||||||
During the year |
0.53 | % | 0.44 | % | 0.84 | % | 0.24 | % | 0.31 | % | 0.50 | % | 0.68 | % | 0.83 | % | 1.06 | % | ||||||||||||||||||||||
At year-end |
0.39 | 0.44 | 0.26 | 0.34 | 0.20 | 0.37 | 0.93 | 0.63 | 0.76 |
1. | Includes short-term secured financings of $29.19 billion, $24.53 billion and $12.93 billion as of December 2011, December 2010 and December 2009, respectively. |
2. | As of December 2011, December 2010 and December 2009, weighted average interest rates include the effects of hedging. |
Goldman Sachs 2011 Form 10-K | 221 |
THE GOLDMAN SACHS GROUP, INC. AND SUBSIDIARIES
Supplemental Financial Information
Cross-border Outstandings
As of December 2011 | ||||||||||||||||
in millions | Banks | Governments | Other | Total | ||||||||||||
Country |
||||||||||||||||
France |
$ | 33,916 | 1 | $ | 2,859 | $ | 3,776 | $ | 40,551 | |||||||
Cayman Islands |
| | 33,742 | 33,742 | 3 | |||||||||||
Japan |
18,745 | 31 | 6,457 | 25,233 | 3 | |||||||||||
Germany |
5,458 | 16,089 | 3,162 | 24,709 | ||||||||||||
United Kingdom |
2,111 | 3,349 | 5,243 | 10,703 | 3 | |||||||||||
Italy |
6,143 | 3,054 | 841 | 10,038 | 4 | |||||||||||
Ireland |
1,148 | 63 | 8,801 | 2 | 10,012 | |||||||||||
China |
6,722 | 38 | 2,908 | 9,668 | ||||||||||||
Switzerland |
3,836 | 40 | 5,112 | 8,988 | ||||||||||||
Canada |
676 | 1,019 | 6,841 | 8,536 | ||||||||||||
Australia |
1,597 | 470 | 5,209 | 7,276 |
As of December 2010 | ||||||||||||||||
in millions | Banks | Governments | Other | Total | ||||||||||||
Country |
||||||||||||||||
France |
$ | 29,250 | 1 | $ | 7,373 | $ | 4,860 | $ | 41,483 | |||||||
Cayman Islands |
7 | | 35,850 | 35,857 | 3 | |||||||||||
Japan |
21,881 | 49 | 8,002 | 29,932 | 3 | |||||||||||
Germany |
3,767 | 16,572 | 2,782 | 23,121 | ||||||||||||
China |
10,849 | 701 | 2,931 | 14,481 | ||||||||||||
United Kingdom |
2,829 | 2,401 | 6,800 | 12,030 | 3 | |||||||||||
Switzerland |
2,473 | 151 | 7,616 | 10,240 | ||||||||||||
Canada |
260 | 366 | 6,741 | 7,367 |
1. | Primarily comprised of secured lending transactions with a clearing house which are secured by collateral. |
2. | Primarily comprised of interests in and receivables from funds domiciled in Ireland, but whose underlying investments are primarily located outside of Ireland, and secured lending transactions which are secured by U.S. government obligations. |
3. | Excludes claims of $2.27 billion, $6.99 billion and $53.01 billion as of December 2011, and $1.21 billion, $7.06 billion and $26.84 billion as of December 2010 for the Cayman Islands, Japan and the United Kingdom, respectively, where the firms subsidiary and the counterparty are domiciled within the same foreign country, but the claim is not denominated in that countrys local currency. |
4. | Primarily comprised of secured lending transactions which are primarily secured by German government obligations. |
222 | Goldman Sachs 2011 Form 10-K |
Goldman Sachs 2011 Form 10-K | 223 |
Plan Category | Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights |
Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights |
Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in the Second Column) |
|||||||||||
Equity compensation plans approved by security holders |
The Goldman Sachs Amended and Restated Stock Incentive Plan 1 | 91, 671,368 | 2 | $ | 97.76 | 3 | 161,010,336 | 4 | ||||||
Equity compensation plans not approved by security holders |
None | | | | ||||||||||
Total |
91, 671,368 | 2 | 161,010,336 | 4 |
1. | The Goldman Sachs Amended and Restated Stock Incentive Plan (SIP) was approved by the shareholders of Group Inc. at our 2003 Annual Meeting of Shareholders and is a successor plan to The Goldman Sachs 1999 Stock Incentive Plan (1999 Plan), which was approved by our shareholders immediately prior to our initial public offering in May 1999 and under which no additional awards have been granted since approval of the SIP. |
2. | Includes: (i) 47,256,938 shares of common stock that may be issued upon exercise of outstanding options; (ii) 44,388,287 shares that may be issued pursuant to outstanding restricted stock units; and (iii) 26,143 shares that may be issued pursuant to outstanding performance-based units granted under the SIP. These awards are subject to vesting and other conditions to the extent set forth in the respective award agreements, and the underlying shares will be delivered net of any required tax withholding. |
3. | This weighted-average exercise price relates only to the options described in footnote 2. Shares underlying restricted stock units and performance-based units are deliverable without the payment of any consideration, and therefore these awards have not been taken into account in calculating the weighted-average exercise price. |
4. | Represents shares remaining to be issued under the SIP, excluding shares reflected in the second column. The total number of shares of common stock that may be delivered pursuant to awards granted under the SIP through the end of our 2008 fiscal year could not exceed 250 million shares. The total number of shares of common stock that may be delivered pursuant to awards granted under the SIP in our 2009 fiscal year and each fiscal year thereafter cannot exceed 5% of the issued and outstanding shares of common stock, determined as of the last day of the immediately preceding fiscal year, increased by the number of shares available for awards in previous years but not covered by awards granted in such years. There are no shares remaining to be issued under the 1999 Plan other than those reflected in the second column. |
224 | Goldman Sachs 2011 Form 10-K |
Item 15. Exhibits and Financial Statement Schedules
(a) Documents filed as part of this Report:
1. Consolidated Financial Statements
The consolidated financial statements required to be filed in this Form 10-K are included in Part II, Item 8 hereof.
2. Exhibits
2.1 |
Plan of Incorporation (incorporated by reference to the corresponding exhibit to the Registrants registration statement on Form S-1 (No. 333-74449)). | |
3.1 |
Restated Certificate of Incorporation of The Goldman Sachs Group, Inc., amended as of May 6, 2011 (incorporated by reference to Exhibit 3.2 to the Registrants Quarterly Report on Form 10-Q for the period ended March 31, 2011, filed May 10, 2011). | |
3.2 |
Amended and Restated By-Laws of The Goldman Sachs Group, Inc., amended as of May 7, 2010 (incorporated by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K, filed May 11, 2010). | |
4.1 |
Indenture, dated as of May 19, 1999, between The Goldman Sachs Group, Inc. and The Bank of New York, as trustee (incorporated by reference to Exhibit 6 to the Registrants registration statement on Form 8-A, filed June 29, 1999). | |
4.2 |
Subordinated Debt Indenture, dated as of February 20, 2004, between The Goldman Sachs Group, Inc. and The Bank of New York, as trustee (incorporated by reference to Exhibit 4.2 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 28, 2003). | |
4.3 |
Warrant Indenture, dated as of February 14, 2006, between The Goldman Sachs Group, Inc. and The Bank of New York, as trustee (incorporated by reference to Exhibit 4.34 to the Registrants Post-Effective Amendment No. 3 to Form S-3, filed on March 1, 2006). | |
4.4 |
Senior Debt Indenture, dated as of December 4, 2007, among GS Finance Corp., as issuer, The Goldman Sachs Group, Inc., as guarantor, and The Bank of New York, as trustee (incorporated by reference to Exhibit 4.69 to the Registrants Post-Effective Amendment No. 10 to Form S-3, filed on December 4, 2007). | |
Certain instruments defining the rights of holders of long-term debt securities of the Registrant and its subsidiaries are omitted pursuant to Item 601(b)(4)(iii) of Regulation S-K. The Registrant hereby undertakes to furnish to the SEC, upon request, copies of any such instruments. | ||
4.5 |
Senior Debt Indenture, dated as of July 16, 2008, between The Goldman Sachs Group, Inc. and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.82 to the Registrants Post-Effective Amendment No. 11 to Form S-3 (No. 333-130074), filed July 17, 2008). | |
4.6 |
Senior Debt Indenture, dated as of October 10, 2008, among GS Finance Corp., as issuer, The Goldman Sachs Group, Inc., as guarantor, and The Bank of New York
Mellon, as trustee (incorporated by reference to | |
10.1 |
The Goldman Sachs Amended and Restated Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 28, 2008). | |
10.2 |
The Goldman Sachs Amended and Restated Restricted Partner Compensation Plan (incorporated by reference to Exhibit 10.1 to the Registrants Quarterly Report on Form 10-Q for the period ended February 24, 2006). | |
10.3 |
Form of Employment Agreement for Participating Managing Directors (applicable to executive officers) (incorporated by reference to Exhibit 10.19 to the
Registrants registration statement on |
Goldman Sachs 2011 Form 10-K | 225 |
10.4 |
Form of Agreement Relating to Noncompetition and Other Covenants (incorporated by reference to | |
10.5 |
Tax Indemnification Agreement, dated as of May 7, 1999, by and among The Goldman Sachs Group, Inc. and various parties (incorporated by reference to Exhibit
10.25 to the Registrants registration statement on | |
10.6 |
Amended and Restated Shareholders Agreement, effective as of January 22, 2010, among The Goldman Sachs Group, Inc. and various parties (incorporated by reference to Exhibit 10.6 to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2009). | |
10.7 |
Instrument of Indemnification (incorporated by reference to Exhibit 10.27 to the Registrants registration statement on Form S-1 (No. 333-75213)). | |
10.8 |
Form of Indemnification Agreement (incorporated by reference to Exhibit 10.28 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 26, 1999). | |
10.9 |
Form of Indemnification Agreement (incorporated by reference to Exhibit 10.44 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 26, 1999). | |
10.10 |
Form of Indemnification Agreement, dated as of July 5, 2000 (incorporated by reference to Exhibit 10.1 to the Registrants Quarterly Report on Form 10-Q for the period ended August 25, 2000). | |
10.11 |
Amendment No. 1, dated as of September 5, 2000, to the Tax Indemnification Agreement, dated as of | |
10.12 |
Letter, dated February 6, 2001, from The Goldman Sachs Group, Inc. to Mr. John H. Bryan (incorporated by reference to Exhibit 10.64 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 24, 2000). | |
10.13 |
Letter, dated February 6, 2001, from The Goldman Sachs Group, Inc. to Mr. James A. Johnson (incorporated by reference to Exhibit 10.65 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 24, 2000). | |
10.14 |
Letter, dated December 18, 2002, from The Goldman Sachs Group, Inc. to Mr. William W. George (incorporated by reference to Exhibit 10.39 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 29, 2002). | |
10.15 |
Letter, dated June 20, 2003, from The Goldman Sachs Group, Inc. to Mr. Claes Dahlbäck (incorporated by reference to Exhibit 10.1 to the Registrants
Quarterly Report on Form 10-Q for the period ended | |
10.16 |
Letter, dated March 31, 2004, from The Goldman Sachs Group, Inc. to Ms. Lois D. Juliber (incorporated by reference to Exhibit 10.1 to the Registrants
Quarterly Report on Form 10-Q for the period ended | |
10.17 |
Letter, dated April 6, 2005, from The Goldman Sachs Group, Inc. to Mr. Stephen Friedman (incorporated by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed April 8, 2005). | |
10.18 |
Letter, dated May 12, 2009, from The Goldman Sachs Group, Inc. to Mr. James J. Schiro (incorporated by reference to Exhibit 10.1 to the
Registrants Quarterly Report on Form 10-Q for the period ended | |
10.19 |
Form of Amendment, dated November 27, 2004, to Agreement Relating to Noncompetition and Other Covenants, dated May 7, 1999 (incorporated by reference to Exhibit 10.32 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 26, 2004). | |
10.20 |
Form of Year-End Restricted Stock Award (incorporated by reference to Exhibit 10.34 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 30, 2007). | |
10.21 |
Form of Year-End Restricted Stock Award in Connection with Outstanding RSU Awards (incorporated by reference to Exhibit 10.35 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 30, 2007). | |
10.22 |
The Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan for U.S. Participating Managing Directors (terminated as of December 15, 2008) (incorporated by reference to Exhibit 10.36 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 30, 2007). |
226 | Goldman Sachs 2011 Form 10-K |
10.23 |
Form of Year-End Option Award Agreement (incorporated by reference to Exhibit 10.36 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 28, 2008). | |
10.24 |
Form of Year-End RSU Award Agreement (French alternative award) (incorporated by reference to | |
10.25 |
Amendments to 2005 and 2006 Year-End RSU and Option Award Agreements (incorporated by reference to Exhibit 10.44 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 30, 2007). | |
10.26 |
Form of Non-Employee Director Option Award Agreement (incorporated by reference to Exhibit 10.34 to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2009). | |
10.27 |
Form of Non-Employee Director RSU Award Agreement. | |
10.28 |
Description of Non-Employee Director Compensation. | |
10.29 |
Ground Lease, dated August 23, 2005, between Battery Park City Authority d/b/a/ Hugh L. Carey Battery Park City Authority, as Landlord, and Goldman Sachs Headquarters LLC, as Tenant (incorporated by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed August 26, 2005). | |
10.30 |
General Guarantee Agreement, dated January 30, 2006, made by The Goldman Sachs Group, Inc. relating to certain obligations of Goldman, Sachs & Co. (incorporated by reference to Exhibit 10.45 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 25, 2005). | |
10.31 |
Goldman, Sachs & Co. Executive Life Insurance Policy and Certificate with Metropolitan Life Insurance Company for Participating Managing Directors (incorporated by reference to Exhibit 10.1 to the Registrants Quarterly Report on Form 10-Q for the period ended August 25, 2006). | |
10.32 |
Form of Goldman, Sachs & Co. Executive Life Insurance Policy with Pacific Life & Annuity Company for Participating Managing Directors, including policy specifications and form of restriction on Policy Owners Rights (incorporated by reference to Exhibit 10.2 to the Registrants Quarterly Report on Form 10-Q for the period ended August 25, 2006). | |
10.33 |
Form of Second Amendment, dated November 25, 2006, to Agreement Relating to Noncompetition and Other Covenants, dated May 7, 1999, as amended effective November
27, 2004 (incorporated by reference to Exhibit 10.51 to the Registrants Annual Report on Form 10-K for the fiscal year ended | |
10.34 |
Description of PMD Retiree Medical Program (incorporated by reference to Exhibit 10.2 to the Registrants Quarterly Report on Form 10-Q for the period ended February 29, 2008). | |
10.35 |
Letter, dated June 28, 2008, from The Goldman Sachs Group, Inc. to Mr. Lakshmi N. Mittal (incorporated by reference to Exhibit 99.1 to the Registrants Current Report on Form 8-K, filed June 30, 2008). | |
10.36 |
Securities Purchase Agreement, dated September 29, 2008, between The Goldman Sachs Group, Inc. and Berkshire Hathaway Inc. (incorporated by reference to Exhibit 10.1 to the Registrants Quarterly Report on Form 10-Q for the period ended August 29, 2008). | |
10.37 |
General Guarantee Agreement, dated December 1, 2008, made by The Goldman Sachs Group, Inc. relating to certain obligations of Goldman Sachs Bank USA (incorporated by reference to Exhibit 4.80 to the Registrants Post-Effective Amendment No. 2 to Form S-3, filed March 19, 2009). | |
10.38 |
General Guarantee Agreement, dated November 24, 2008, made by The Goldman Sachs Group, Inc. relating to the obligations of Goldman Sachs Bank (Europe) plc (incorporated by reference to Exhibit 10.59 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 28, 2008). | |
10.39 |
Guarantee Agreement, dated November 28, 2008 and amended effective as of January 1, 2010, between The Goldman Sachs Group, Inc. and Goldman Sachs Bank USA (incorporated by reference to Exhibit 10.51 to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2009). |
Goldman Sachs 2011 Form 10-K | 227 |
10.40 |
Collateral Agreement, dated November 28, 2008, between The Goldman Sachs Group, Inc., Goldman Sachs Bank USA and each other party that becomes a pledgor pursuant thereto (incorporated by reference to Exhibit 10.61 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 28, 2008). | |
10.41 |
Form of One-Time RSU Award Agreement. | |
10.42 |
Amendments to Certain Equity Award Agreements (incorporated by reference to Exhibit 10.68 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 28, 2008). | |
10.43 |
Amendments to Certain Non-Employee Director Equity Award Agreements (incorporated by reference to Exhibit 10.69 to the Registrants Annual Report on Form 10-K for the fiscal year ended November 28, 2008). | |
10.44 |
Form of Signature Card for Equity Awards. | |
10.45 |
Form of Signature Card for Equity Awards (employees in Asia outside China). | |
10.46 |
Form of Signature Card for Equity Awards (employees in China). | |
10.47 |
Form of Year-End RSU Award Agreement (not fully vested). | |
10.48 |
Form of Year-End RSU Award Agreement (fully vested). | |
10.49 |
Form of Year-End RSU Award Agreement (Base and/or Supplemental). | |
10.50 |
Form of Year-End Short-Term RSU Award Agreement. | |
10.51 |
Form of Year-End Restricted Stock Award Agreement (Base and/or Supplemental). | |
10.52 |
Form of Year-End Restricted Stock Award Agreement (fully vested). | |
10.53 |
Form of Year-End Short-Term Restricted Stock Award Agreement. | |
10.54 |
General Guarantee Agreement, dated March 2, 2010, made by The Goldman Sachs Group, Inc. relating to the obligations of Goldman Sachs Execution & Clearing, L.P. (incorporated by reference to Exhibit 10.1 to the Registrants Quarterly Report on Form 10-Q for the period ended March 31, 2010). | |
10.55 |
Form of Deed of Gift (incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the period ended June 30, 2010). | |
10.56 |
The Goldman Sachs Long-Term Performance Incentive Plan, dated December 17, 2010 (incorporated by reference to the Registrants Current Report on Form 8-K, filed December 23, 2010). | |
10.57 |
Form of Performance-Based Restricted Stock Unit Award Agreement (incorporated by reference to the Registrants Current Report on Form 8-K, filed December 23, 2010). | |
10.58 |
Form of Performance-Based Option Award Agreement (incorporated by reference to the Registrants Current Report on Form 8-K, filed December 23, 2010). | |
10.59 |
Form of Performance-Based Cash Compensation Award Agreement (incorporated by reference to the Registrants Current Report on Form 8-K, filed December 23, 2010). | |
10.60 |
Amended and Restated General Guarantee Agreement dated November 21, 2011 made by the Goldman Sachs Group, Inc. relating to certain obligations of Goldman Sachs Bank USA (incorporated by reference to Exhibit 4.1 to the Registrants Current Report on Form 8-K, filed November 21, 2011). | |
10.61 |
Form of Aircraft Time Sharing Agreement. | |
12.1 |
Statement re: Computation of Ratios of Earnings to Fixed Charges and Ratios of Earnings to Combined Fixed Charges and Preferred Stock Dividends. | |
21.1 |
List of significant subsidiaries of The Goldman Sachs Group, Inc. | |
23.1 |
Consent of Independent Registered Public Accounting Firm. | |
31.1 |
Rule 13a-14(a) Certifications. | |
32.1 |
Section 1350 Certifications. * | |
99.1 |
Report of Independent Registered Public Accounting Firm on Selected Financial Data. |
228 | Goldman Sachs 2011 Form 10-K |
101 |
Interactive data files pursuant to Rule 405 of Regulation S-T: (i) the Consolidated Statements of Earnings for the years ended December 31, 2011, December 31, 2010 and December 31, 2009; (ii) the Consolidated Statements of Financial Condition as of December 31, 2011 and December 31, 2010; (iii) the Consolidated Statements of Changes in Shareholders Equity for the years ended December 31, 2011, December 31, 2010 and December 31, 2009; (iv) the Consolidated Statements of Cash Flows for the years ended December 31, 2011, December 31, 2010 and December 31, 2009; (v) the Consolidated Statements of Comprehensive Income for the years ended December 31, 2011, December 31, 2010 and December 31, 2009; and (vi) the notes to the Consolidated Financial Statements. |
| This exhibit is a management contract or a compensatory plan or arrangement. |
* | This information is furnished and not filed for purposes of Sections 11 and 12 of the Securities Act of 1933 and Section 18 of the Securities Exchange Act of 1934. |
Goldman Sachs 2011 Form 10-K | 229 |
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
THE GOLDMAN SACHS GROUP, INC. | ||||
By: |
/s/ David A. Viniar | |||
Name: |
David A. Viniar | |||
Title: |
Chief Financial Officer |
Date: February 28, 2012
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Signature |
Capacity |
Date | ||
/s/ Lloyd C. Blankfein Lloyd C. Blankfein |
Director, Chairman and Chief Executive Officer (Principal Executive Officer) |
February 28, 2012 | ||
/s/ John H. Bryan John H. Bryan |
Director | February 28, 2012 | ||
/s/ M. Michele Burns M. Michele Burns |
Director | February 28, 2012 | ||
/s/ Gary D. Cohn Gary D. Cohn |
Director | February 28, 2012 | ||
/s/ Claes Dahlbäck Claes Dahlbäck |
Director | February 28, 2012 | ||
/s/ Stephen Friedman Stephen Friedman |
Director | February 28, 2012 | ||
/s/ William W. George William W. George |
Director | February 28, 2012 | ||
/s/ James A. Johnson James A. Johnson |
Director | February 28, 2012 | ||
/s/ Lois D. Juliber Lois D. Juliber |
Director | February 28, 2012 | ||
/s/ Lakshmi N. Mittal Lakshmi N. Mittal |
Director | February 28, 2012 | ||
/s/ James J. Schiro James J. Schiro |
Director | February 28, 2012 |
Goldman Sachs 2011 Form 10-K | II-1 |
/s/ Debora L. Spar Debora L. Spar |
Director | February 28, 2012 | ||
/s/ David A. Viniar David A. Viniar |
Chief Financial Officer (Principal Financial Officer) |
February 28, 2012 | ||
/s/ Sarah E. Smith Sarah E. Smith |
Principal Accounting Officer | February 28, 2012 |
II-2 | Goldman Sachs 2011 Form 10-K |
Exhibit 10.27
THE GOLDMAN SACHS
AMENDED AND RESTATED STOCK INCENTIVE PLAN
OUTSIDE DIRECTOR RSU AWARD
This Award Agreement sets forth the terms and conditions of an Award of RSUs granted to you under The Goldman Sachs Amended and Restated Stock Incentive Plan (the Plan) as of the Date of Grant.
1. The Plan. This Award is made pursuant to the Plan, the terms of which are incorporated in this Award Agreement. Capitalized terms used in this Award Agreement which are not defined in this Award Agreement have the meanings as used or defined in the Plan. IN LIGHT OF THE U.S. TAX RULES RELATING TO DEFERRED COMPENSATION IN SECTION 409A OF THE CODE, TO THE EXTENT THAT YOU ARE A UNITED STATES TAXPAYER, CERTAIN PROVISIONS OF THIS AWARD AGREEMENT AND OF THE PLAN SHALL APPLY ONLY AS PROVIDED IN PARAGRAPH 11.
2. Award. The number of RSUs subject to this Award is set forth in the Award Statement delivered to you. Each RSU constitutes an unfunded and unsecured promise of GS Inc. to deliver (or cause to be delivered) to you, subject to the terms and conditions of this Award Agreement, a share of Common Stock (a Share) (or cash or other property equal to the Fair Market Value thereof) on the Delivery Date as provided herein. Until such delivery, you have only the rights of a general unsecured creditor and no rights as a shareholder of GS Inc. This Award is subject to all terms and provisions of the Plan and this Award Agreement.
3. Delivery.
(a) In General. Except as provided below in this Paragraph 3 and subject to Paragraphs 6, 7 and 11, the Delivery Date shall be on the first Business Day in the third quarter of the Firms fiscal year that occurs within a Window Period in the year following the year in which you cease to be a director of the GS Inc. Board. The Firm may deliver cash or other property in lieu of all or any portion of the Shares otherwise deliverable on the Delivery Date. Unless otherwise determined by the Committee, or as otherwise provided in this Award Agreement, delivery of Shares shall be effected by book-entry credit to the Custody Account or to a brokerage account, as approved or required by the Firm. No delivery of Shares shall be made unless you have timely established the Custody Account or a brokerage account, as approved or required by the Firm. You shall be the beneficial owner of any Shares properly credited to the Custody Account or delivered to a brokerage account, as approved or required by the Firm. You shall have no right to any dividend or distribution with respect to such Shares if the record date for such dividend or distribution is prior to the date the Custody Account or brokerage account, as approved or required by the Firm, is properly credited with such Shares.
(b) Death. Notwithstanding any other Paragraph of this Award Agreement (except Paragraph 11), if you die prior to the Delivery Date, the Shares (or cash or other property in lieu of all or any portion thereof) corresponding to your Outstanding RSUs shall be delivered to the representative of your estate as soon as practicable after the date of death and after such
documentation as may be requested by the Committee is provided to the Committee. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Outstanding RSUs under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
4. Dividend Equivalent Rights. Prior to the delivery of Shares (or cash or other property in lieu thereof) pursuant to this Award Agreement, at or after the time of distribution of any regular cash dividend paid by GS Inc. in respect of the Common Stock, you shall be entitled to receive an amount in cash or other property equal to such regular cash dividend payment as would have been made in respect of the Shares not yet delivered, as if the Shares had been actually delivered.
5. Non-transferability. Except as may otherwise be provided in this Paragraph or as otherwise may be provided by the Committee, the limitations 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 5 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which you may transfer some or all of your RSUs 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 recipients 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.
6. Conflicted Employment. Notwithstanding anything in this Award Agreement to the contrary, if you accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding RSUs would result in an actual or perceived conflict of interest (Conflicted Employment), then you shall receive, at the sole discretion of the Firm, either a lump sum cash payment in respect of, or delivery of Shares underlying, your then Outstanding RSUs, in each case as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
7. Withholding, Consents and Legends.
(a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan, provided that the Committee may determine not to apply the minimum withholding rate specified in Section 3.2.2 of the Plan.
(b) Your rights in respect of the RSUs are conditioned on the receipt to the full satisfaction of the Committee of any required consents (as described in Section 3.3 of the Plan) that the Committee may determine to be necessary or advisable, and, by accepting this Award, you agree to the matters described in Section 3.3.3(d) of the Plan.
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(c) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable. GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
8. Successors and Assigns of GS Inc. The terms and conditions of this Award Agreement shall be binding upon and shall inure to the benefit of GS Inc. and its successors and assigns.
9. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement in any respect in accordance with Section 1.3 of the Plan, and the Board may amend the Plan in any respect in accordance with Section 3.1 of the Plan. Notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(h) and 3.1 of the Plan, no such amendment shall materially adversely affect your rights and obligations under this Award Agreement without your consent, except that the Committee reserves the right to accelerate the delivery of the Shares and in its discretion provide that such Shares may not be transferable until the Delivery Date. Any amendment of this Award Agreement shall be in writing.
10. 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.
11. Compliance of Award Agreement and Plan with Section 409A. The provisions of this Paragraph 11 apply to you only if you are a United States taxpayer.
(a) References in this Award Agreement to Section 409A refer to Section 409A of the Code, including any amendments or successor provisions to that Section and any regulations and other administrative guidance thereunder, in each case as they, from time to time, may be amended or interpreted through further administrative guidance. This Award Agreement and the Plan provisions that apply to this Award are intended and shall be construed to comply with Section 409A (including the requirements applicable to, or the conditions for exemption from treatment as, a deferral of compensation or deferred compensation as those terms are defined in the regulations under Section 409A (409A deferred compensation), whether by reason of short-term deferral treatment or other exceptions or provisions). The Committee shall have full authority to give effect to this intent. To the extent necessary to give effect to this intent, in the case of any conflict or potential inconsistency between the provisions of the Plan (including, without limitation, Sections 1.3.2 and 2.1 thereof) and this Award Agreement, the provisions of this Award Agreement shall govern, and in the case of any conflict or potential inconsistency between this Paragraph 11 and the other provisions of this Award Agreement, this Paragraph 11 shall govern.
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(b) Delivery of Shares shall not be delayed beyond the date on which all applicable conditions or restrictions on delivery of Shares in respect of your RSUs required by this Agreement (including, without limitation, those specified in Paragraphs 7(a) and (b), and the consents and other items specified in Section 3.3 of the Plan) are satisfied, and shall occur by December 31 of the calendar year in which the Delivery Date occurs unless, in order to permit such conditions or restrictions to be satisfied, the Committee elects, pursuant to Treasury Regulations section (Reg.) 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted in accordance with Section 409A, to delay delivery of Shares to a later date as may be permitted under Section 409A, including, without limitation, Regs. 1.409A-2(b)(7) (in conjunction with Section 3.21.3 of the Plan pertaining to Code Section 162(m)) and 1.409A-3(d).
(c) Notwithstanding the provisions of Paragraph 3(a) and Section 1.3.2(i) of the Plan, to the extent necessary to comply with Section 409A, any securities, other Awards or other property that the Firm may deliver in respect of your RSUs shall not have the effect of deferring delivery or payment, income inclusion, or a substantial risk of forfeiture, beyond the date on which such delivery, payment or inclusion would occur or such risk of forfeiture would lapse, with respect to the Shares that would otherwise have been deliverable (unless the Committee elects a later date for this purpose pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted under Section 409A, including, without limitation and to the extent applicable, the subsequent election provisions of Section 409A(a)(4)(C) of the Code and Reg. 1.409A-2(b)).
(d) Notwithstanding the timing provisions of Paragraph 3(b), the delivery of Shares referred to therein shall be made after the date of death and during the calendar year that includes the date of death (or on such later date as may be permitted under Section 409A).
(e) Notwithstanding any provision of Paragraph 4 or Section 2.8.2 of the Plan to the contrary, the Dividend Equivalent Rights with respect to each of your Outstanding RSUs shall be paid to you within the calendar year that includes the date of distribution of any corresponding regular cash dividends paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant. The payment shall be in an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Shares underlying such Outstanding RSUs.
(f) The timing of delivery or payment referred to in Paragraph 6 shall be the earlier of (i) the Delivery Date or (ii) within the calendar year in which the Committee receives satisfactory documentation relating to your Conflicted Employment, provided that such delivery or payment shall be made only at such time as, and if and to the extent that it, as reasonably determined by the Firm, would not result in the imposition of any additional tax to you under Section 409A.
(g) Section 3.4 of the Plan shall not apply to Awards that are 409A deferred compensation.
(h) Delivery of Shares in respect of this Award may be made, if and to the extent elected by the Committee, later than the Delivery Date or other date or period specified hereinabove (but, in the case of any Award that constitutes 409A deferred compensation, only to the extent that the later delivery is permitted under Section 409A).
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12. Headings. The headings in this Award Agreement are for the purpose of convenience only and are not intended to define or limit the construction of the provisions hereof.
IN WITNESS WHEREOF, GS Inc. has caused this Award Agreement to be duly executed and delivered as of the Date of Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | ||
Title: |
Accepted and Agreed: | ||
By: | ||
Print Name: |
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Exhibit 10.28
Description of Independent Director Compensation
For 2011, the compensation for the independent directors of The Goldman Sachs Group, Inc. (Group Inc.), which was awarded on February 1, 2012, consisted of the following:
| a $75,000 annual retainer in the form of 662 vested restricted stock units (RSUs) to each independent director, other than Debora L. Spar, who became a director in June 2011 and received a prorated retainer of $43,750 in the form of 386 vested RSUs, and M. Michele Burns, who became a director in October 2011 and received a prorated retainer of $18,750 in the form of 166 vested RSUs; |
| a $25,000 committee chair fee in the form of 221 vested RSUs to each of John H. Bryan, Stephen Friedman, James A. Johnson and James J. Schiro; and |
| an annual grant of 2,500 vested RSUs to each independent director, other than Dr. Spar, who became a director in June 2011 and received a prorated annual grant of 1,459 vested RSUs, and Ms. Burns, who became a director in October 2011 and received a prorated annual grant of 625 vested RSUs. |
In addition, H. Lee Scott, Jr., who retired as a director in May 2011, received a prorated retainer of $31,250 and a prorated annual grant of $112,817. Because he was no longer on the Group Inc. board of directors (the Board), the Board determined to pay his prorated compensation in cash rather than equity.
RSUs granted to independent directors for 2011 services are fully vested and provide for delivery of the underlying shares of common stock, par value $0.01 per share (Common Stock), of Group Inc. on the first eligible trading day in the third quarter of the year following the year of the directors retirement from the Board.
The Board, upon the recommendation of Group Inc.s Corporate Governance and Nominating Committee, has a stock ownership policy that requires each independent director to beneficially own at least 5,000 shares of Common Stock or fully vested RSUs within two years of becoming a director.
Independent directors of Group Inc. are permitted to participate in Group Inc.s employee matching gift program on the same terms as non-participating managing director employees generally. Under the program for 2011, Group Inc. matched gifts of up to $20,000 in the aggregate per participating individual.
Independent directors receive no compensation other than directors fees.
Exhibit 10.41
THE GOLDMAN SACHS AMENDED AND RESTATED
STOCK INCENTIVE PLAN
ONE-TIME RSU AWARD
This Award Agreement sets forth the terms and conditions of this special One-Time award (this Award) of restricted stock units (One-Time RSUs) granted to you under The Goldman Sachs 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. IN LIGHT OF THE U.S. TAX RULES RELATING TO DEFERRED COMPENSATION IN SECTION 409A OF THE CODE, TO THE EXTENT THAT YOU ARE A UNITED STATES TAXPAYER, CERTAIN PROVISIONS OF THIS AWARD AGREEMENT AND OF THE PLAN SHALL APPLY ONLY AS PROVIDED IN PARAGRAPH 15.
2. Award. The number of One-Time RSUs subject to this Award is set forth in the Award Statement delivered to you. An RSU is an unfunded and unsecured promise to deliver (or cause to be delivered) to you, subject to the terms and conditions of this Award Agreement, a share of Common Stock (a Share) on the Delivery Date or as otherwise provided herein. Until such delivery, you have only the rights of a general unsecured creditor, and no rights as a shareholder of GS Inc. THIS AWARD IS CONDITIONED ON YOUR EXECUTING THE RELATED SIGNATURE CARD AND RETURNING IT TO THE ADDRESS DESIGNATED ON THE SIGNATURE CARD AND/OR BY THE METHOD DESIGNATED ON THE SIGNATURE CARD BY THE DATE SPECIFIED, 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 12. BY EXECUTING THE RELATED SIGNATURE CARD (WHICH, AMONG OTHER THINGS, OPENS THE CUSTODY ACCOUNT REFERRED TO IN PARAGRAPH 3(b) 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. Vesting and Delivery.
(a) Vesting. Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 6, 7, 9, 10 and 15, on each Vesting Date you shall become Vested in the number or percentage of One-Time RSUs specified next to such Vesting Date on the Award Statement (which may be rounded to avoid fractional Shares). When a One-Time RSU becomes Vested, it means only that your continued active Employment is not required in order to receive delivery of the Shares underlying your Outstanding One-Time RSUs that are or become Vested. However, all other terms and conditions of this Award Agreement shall continue to apply to such Vested One-Time RSUs, and failure to meet such terms and conditions may result in the termination of this Award (as a result of which no Shares underlying such Vested One-Time RSUs would be delivered).
(b) Delivery.
(i) The Delivery Dates with respect to this Award shall be the dates specified (next to the number or percentage of One-Time RSUs) as such on your Award Statement. In accordance with Treasury Regulations section (Reg.) 1.409A-3(d), the Firm may accelerate delivery to a date that is up to 30 days before the Delivery Date specified on the Award Statement; provided, however, that in no event shall you be permitted to designate, directly or indirectly, the taxable year of the delivery.
(ii) Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 5, 6, 7, 9, 10, 15 and 16, in accordance with Section 3.23 of the Plan, reasonably promptly (but in no case more than 30 Business Days) after each date specified as a Delivery Date (or any other date delivery of Shares is called for hereunder), Shares underlying the number or percentage of your then Outstanding One-Time RSUs with respect to which such Delivery Date (or other date) has occurred (which number of Shares may be rounded to avoid fractional Shares) shall be delivered by book entry credit to your Custody Account or to a brokerage account, as approved or required by the Firm. Notwithstanding the foregoing, if you are or become considered by GS Inc. to be one of its covered employees within the meaning of Section 162(m) of the Code, then you shall be subject to Section 3.21.3 of the Plan, as a result of which delivery of your Shares may be delayed.
(iii) In accordance with Section 1.3.2(i) of the Plan, in the discretion of the Committee, in lieu of all or any portion of the Shares otherwise deliverable in respect of all or any portion of your One-Time RSUs, the Firm may deliver cash, other securities, other awards under the Plan or other property, and all references in this Award Agreement to deliveries of Shares shall include such deliveries of cash, other securities, other awards under the Plan or other property.
(iv) In the discretion of the Committee, delivery of Shares may be made initially into an escrow account meeting such terms and conditions as are determined by the Firm and may be held in that escrow account until such time as the Committee has received such documentation as it may have requested or until the Committee has determined that any other conditions or restrictions on delivery of Shares required by this Award Agreement have been satisfied. By accepting your One-Time RSUs, you have agreed on behalf of yourself (and your estate or other permitted beneficiary) that the Firm may establish and maintain an escrow account on such terms and conditions (which may include, without limitation, your (or your estate or beneficiary) executing any documents related to, and your (or your estate or beneficiary) paying for any costs associated with, such account) as the Firm may deem necessary or appropriate. Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in escrow may be accumulated and shall be paid as determined by the Firm in its sole discretion.
(c) Death. Notwithstanding any other Paragraph of this Award Agreement (except Paragraph 15), if you die prior to the Delivery Date, the Shares underlying your then Outstanding One-Time RSUs shall be delivered to the representative of your estate as soon as practicable after the date of death and after such documentation as may be requested by the Committee is provided to the Committee. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Outstanding One-Time RSUs under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
4. Termination of One-Time RSUs and Non-Delivery of Shares.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 3(c), 6, 7, and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, your rights in respect of your One-Time RSUs that were Outstanding but that had not yet become Vested prior to your termination of Employment immediately shall terminate, such One-Time RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof.
(b) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of all of your Outstanding One-Time RSUs (whether or not Vested) immediately shall terminate, such One-Time RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof if:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
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(ii) any event that constitutes Cause has occurred;
(iii) (A) you, in any manner, directly or indirectly, (1) Solicit any Client to transact business with a Competitive Enterprise or to reduce or refrain from doing any business with the Firm, (2) interfere with or damage (or attempt to interfere with or damage) any relationship between the Firm and any Client, (3) Solicit any person who is an employee of the Firm to resign from the Firm or to apply for or accept employment with any Competitive Enterprise or (4) on behalf of yourself or any person or Competitive Enterprise hire, or participate in the hiring of, any Selected Firm Personnel or identify, or participate in the identification of, Selected Firm Personnel for potential hiring, whether as an employee or consultant or otherwise, or (B) Selected Firm Personnel are Solicited, hired or accepted into partnership, membership or similar status (1) by a Competitive Enterprise that you form, that bears your name, in which you are a partner, member or have similar status, or in which you possess or control greater than a de minimis equity ownership, voting or profit participation or (2) by any Competitive Enterprise where you have, or are intended to have, direct or indirect managerial or supervisory responsibility for such Selected Firm Personnel;
(iv) you fail to certify to GS Inc., in accordance with procedures established by the Committee, that you have complied, or the Committee determines that you in fact have failed to comply, with all the terms and conditions of the Plan and this Award Agreement. By accepting the delivery of Shares under this Award Agreement, you shall be deemed to have represented and certified at such time that you have complied with all the terms and conditions of the Plan and this Award Agreement;
(v) the Committee determines that you failed to meet, in any respect, any obligation you may have under any agreement between you and the Firm, or any agreement entered into in connection with your Employment with the Firm or this Award, including, without limitation, the Firms 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;
(vi) as a result of any action brought by you, it is determined that any of the terms or conditions for delivery of Shares in respect of this Award Agreement are invalid; [or]
(vii) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Outstanding One-Time RSUs[; or]
[(viii) this Award is intended to replace or substitute for any award or compensation forgone with an entity to which you previously provided services, and such entity nevertheless delivers to you such award or compensation (including, but not limited to, cash, equity or other property (whether vested or unvested)), as determined by the Firm in its sole discretion].
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. For the avoidance of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm shall constitute (i) failure to meet an obligation you have under an agreement referred to in Paragraph 4(b)(v) regardless of whether such obligation arises under a written agreement, and/or (ii) a material violation of Firm policy constituting Cause referred to in Paragraph 4(b)(ii).
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(c) Unless the Committee determines otherwise, without limiting any other provision in Paragraph 4(b), and except as provided in Paragraph 7, if the Committee determines that, during the Firms fiscal year, you participated in the structuring or marketing of any product or service, or participated on behalf of the Firm or any of its clients in the purchase or sale of any security or other property, in any case without appropriate consideration of the risk to the Firm or the broader financial system as a whole (for example, where you have improperly analyzed such risk or where you have failed sufficiently to raise concerns about such risk) and, as a result of such action or omission, the Committee determines there has been, or reasonably could be expected to be, a material adverse impact on the Firm, your business unit or the broader financial system, your rights in respect of your One-Time RSUs awarded as part of this Award (whether or not Vested) immediately shall terminate, such One-Time RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof (and any Shares, dividends, payments under Dividend Equivalent Rights, or other amounts paid or delivered to you in respect of this Award shall be subject to repayment in accordance with, or in a manner similar to the provisions described in, Paragraph 5).
5. Repayment. The provisions of Section 2.6.3 of the Plan (which require Grantees to repay to the Firm amounts delivered to them if the Committee determines that all terms and conditions of this Award Agreement in respect of such delivery were not satisfied) shall apply to this Award which, for the avoidance of doubt, includes all amounts received under this Award, including dividends and payments under Dividend Equivalent Rights.
6. Extended Absence[, Retirement and Downsizing].
(a) Notwithstanding any other provision of this Award Agreement, but subject to Paragraph 6(b), in the event of the termination of your Employment (determined as described in Section 1.2.19 of the Plan) by reason of Extended Absence [or Retirement (as defined below)], the condition set forth in Paragraph 4(a) shall be waived with respect to any One-Time RSUs that were Outstanding but that had not yet become Vested immediately prior to such termination of Employment (as a result of which such One-Time RSUs shall become Vested), but all other terms and conditions of this Award Agreement shall continue to apply. [Notwithstanding anything to the contrary in the Plan or otherwise, Retirement means termination of your Employment (other than for Cause) on or after the Date of Grant at a time when (i) (A) the sum of your age plus years of service with the Firm (as determined by the Committee in its sole discretion) equals or exceeds 60 and (B) you have completed at least 10 years of service with the Firm (as determined by the Committee in its sole discretion) or, if earlier, (ii) (A) you have attained age 50 and (B) you have completed at least five years of service with the Firm (as determined by the Committee in its sole discretion).]
(b) Without limiting the application of Paragraphs 4(b) and 4(c), your rights in respect of your Outstanding One-Time RSUs that become Vested in accordance with Paragraph 6(a) immediately shall terminate, such Outstanding One-Time RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect thereof if, prior to the original Vesting Date with respect to such One-Time RSUs, you (i) form, or acquire a 5% or greater equity ownership, voting or profit participation interest in, any Competitive Enterprise, or (ii) associate in any capacity (including, but not limited to, association as an officer, employee, partner, director, consultant, agent or advisor) with any Competitive Enterprise. Notwithstanding the foregoing, unless otherwise determined by the Committee in its discretion, this Paragraph 6(b) 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.
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(c) [Notwithstanding any other provision of this Award Agreement and subject to your executing such general waiver and release of claims and an agreement to pay any associated tax liability, both as may be prescribed by the Firm or its designee, if your Employment is terminated without Cause solely by reason of a downsizing, the condition set forth in Paragraph 4(a) shall be waived with respect to your One-Time RSUs that were Outstanding but that had not yet become Vested immediately prior to such termination of Employment (as a result of which such One-Time RSUs 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.]
7. Change in Control. Notwithstanding anything to the contrary in this Award Agreement (except Paragraph 15), in the event a Change in Control shall occur and within 18 months thereafter the Firm terminates your Employment without Cause or you terminate your Employment for Good Reason, all Shares underlying your then Outstanding One-Time RSUs, whether or not Vested, shall be delivered.
8. Dividend Equivalent Rights. Each One-Time RSU shall include a Dividend Equivalent Right. Accordingly, with respect to each of your Outstanding One-Time RSUs, at or after the time of distribution of any regular cash dividend paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant, you shall be entitled to receive an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Share underlying such Outstanding One-Time RSU. Payment in respect of a Dividend Equivalent Right shall be made only with respect to One-Time RSUs that are Outstanding on the relevant record date. Each Dividend Equivalent Right shall be subject to the provisions of Section 2.8.2 of the Plan.
9. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan. To the extent permitted by applicable law, the Firm, in its sole discretion, may require you to provide amounts equal to all or a portion of any Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection with the grant, vesting or delivery of this Award by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award. In addition, if you are an individual with separate employment contracts (at any time during and/or after the Firms fiscal year), the Firm may, in its sole discretion, require you to provide for a reserve in an amount the Firm determines is advisable or necessary in connection with any actual, anticipated or potential tax consequences related to your separate employment contracts by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award (or any other Outstanding Awards under the Plan). In no event, however, shall any choice you may have under the preceding two sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or the timing of payment of tax obligations.
(b) If you are or become a Managing Director, your rights in respect of the One-Time RSUs are conditioned on your becoming a party to any shareholders agreement to which other similarly situated employees of the Firm are a party.
(c) Your rights in respect of your One-Time RSUs 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 Firms policies in effect from time to time concerning trading in Shares and hedging or pledging Shares and equity-based compensation or other awards (including, without limitation, the Firms 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 One-Time RSUs in accordance with such rules and procedures as may be adopted from time to time with respect to sales of such Shares (which may include, without limitation, restrictions relating to the timing of sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation of orders and volume limits determined by the Firm). In addition, you understand and agree that you shall be responsible for all brokerage costs and other fees or expenses associated with your One-Time RSU Award, including, without limitation, such brokerage costs or other fees or expenses in connection with the sale of Shares delivered to you hereunder.
(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under a separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
(g) Without limiting the application of Paragraphs 4(b) and 4(c), if:
(i) your Employment with the Firm terminates solely because you resigned to accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding One-Time RSUs would result in an actual or perceived conflict of interest (Conflicted Employment); or
(ii) following your termination of Employment other than described in Paragraph 9(g)(i), you notify the Firm that you have accepted or intend to accept Conflicted Employment at a time when you continue to hold Outstanding One-Time RSUs;
then, in the case of Paragraph 9(g)(i) only, the condition set forth in Paragraph 4(a) shall be waived with respect to any One-Time RSUs that were Outstanding but that had not yet become Vested immediately prior to such termination of Employment (as a result of which such One-Time RSUs shall become Vested) and, in the case of Paragraphs 9(g)(i) and 9(g)(ii), at the sole discretion of the Firm, you shall receive either a lump sum cash payment in respect of, or delivery of the Shares underlying, your then Outstanding Vested One-Time RSUs, in each case as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
(h) In addition to and without limiting the generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person shall have any liability to you or any other person for any action taken or omitted in respect of this or any other Award.
(i) You understand and agree that, in the event of your termination of Employment while you continue to hold Outstanding Vested One-Time RSUs, you may be required to certify, from time to time, your compliance with all terms and conditions of the Plan and this Award Agreement. You understand and agree that (i) it is your responsibility to inform the Firm of any changes to your address to ensure timely receipt of the certification materials, (ii) you are responsible for obtaining such certification materials by contacting the Firm if you do not receive certification materials, and (iii) failure to return properly completed certification materials by the deadline specified in the certification materials will result in the forfeiture of all of your Outstanding One-Time RSUs, as applicable, in accordance with Paragraphs 4(b)(iv).
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10. Right of Offset. Except as provided in Paragraph 15(h), the obligation to deliver Shares under this Award Agreement is subject to Section 3.4 of the Plan, which provides for the Firms right to offset against such obligation any outstanding amounts you owe to the Firm and any amounts the Committee deems appropriate pursuant to any tax equalization policy or agreement.
11. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect; provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall materially adversely affect your rights and obligations under this Award Agreement without your consent; and provided further that the Committee expressly reserves its rights to amend 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.
12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or as otherwise may be provided by the Committee, the limitations on transferability set forth in Section 3.5 of the Plan shall apply to this Award. Any purported transfer or assignment in violation of the provisions of this Paragraph 13 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all recipients of One-Time RSUs may transfer some or all of their One-Time RSUs 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 recipients household (other than a tenant or employee), a trust in which these persons have more than 50% of the beneficial interest, and any other entity in which these persons (or the recipient) own more than 50% of the voting interests.
14. Governing Law. THIS 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. Compliance of Award Agreement and Plan with Section 409A. The provisions of this Paragraph 15 apply to you only if you are a United States taxpayer.
(a) References in this Award Agreement to Section 409A refer to Section 409A of the Code, including any amendments or successor provisions to that Section and any regulations and other administrative guidance thereunder, in each case as they, from time to time, may be amended or interpreted through further administrative guidance. This Award Agreement and the Plan provisions that apply to this Award are intended and shall be construed to comply with Section 409A (including the requirements applicable to, or the conditions for exemption from treatment as, a deferral of compensation or deferred compensation as those terms are defined in the regulations under Section 409A (409A deferred compensation), whether by reason of short-term deferral treatment or other exceptions or provisions). The Committee shall have full authority to give effect to this intent. To the extent necessary to give effect to this intent, in the case of any conflict or potential inconsistency between the provisions of the Plan (including, without limitation, Sections 1.3.2 and 2.1 thereof) and this Award Agreement, the provisions of this Award Agreement shall govern, and in the case of any conflict or potential inconsistency between this Paragraph 15 and the other provisions of this Award Agreement, this Paragraph 15 shall govern.
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(b) Delivery of Shares shall not be delayed beyond the date on which all applicable conditions or restrictions on delivery of Shares in respect of your One-Time RSUs required by this Agreement (including, without limitation, those specified in Paragraphs 3(b) and (c), 6(b) [and (c) (execution of waiver and release of claims and agreement to pay associated tax liability)] and 9 and the consents and other items specified in Section 3.3 of the Plan) are satisfied. To the extent that any portion of this Award is intended to satisfy the requirements for short-term deferral treatment under Section 409A, delivery for such portion shall occur by the March 15 coinciding with the last day of the applicable short-term deferral period described in Reg. 1.409A-1(b)(4) in order for the delivery of Shares to be within the short-term deferral exception unless, in order to permit all applicable conditions or restrictions on delivery to be satisfied, the Committee elects, pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted in accordance with Section 409A, to delay delivery of Shares to a later date within the same calendar year or to such later date as may be permitted under Section 409A, including, without limitation, Regs. 1.409A-2(b)(7) (in conjunction with Section 3.21.3 of the Plan pertaining to Code Section 162(m)) and 1.409A-3(d).
(c) Notwithstanding the provisions of Paragraph 3(b)(iii) and Section 1.3.2(i) of the Plan, to the extent necessary to comply with Section 409A, any securities, other Awards or other property that the Firm may deliver in respect of your One-Time RSUs shall not have the effect of deferring delivery or payment, income inclusion, or a substantial risk of forfeiture, beyond the date on which such delivery, payment or inclusion would occur or such risk of forfeiture would lapse, with respect to the Shares that would otherwise have been deliverable (unless the Committee elects a later date for this purpose pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted under Section 409A, including, without limitation and to the extent applicable, the subsequent election provisions of Section 409A(a)(4)(C) of the Code and Reg. 1.409A-2(b)).
(d) Notwithstanding the timing provisions of Paragraph 3(c), the delivery of Shares referred to therein shall be made after the date of death and during the calendar year that includes the date of death (or on such later date as may be permitted under Section 409A).
(e) The timing of delivery or payment pursuant to Paragraph 7 shall occur on the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the termination of Employment occurs; provided, however, that, if you are a specified employee (as defined by the Firm in accordance with Section 409A(a)(2)(i)(B) of the Code), delivery shall occur on the earlier of the Delivery Date or (to the extent required to avoid the imposition of additional tax under Section 409A) the date that is six months after your termination of Employment (or, if the latter date is not during a Window Period, the first trading day of the next Window Period). For purposes of Paragraph 7, references in this Award Agreement to termination of Employment mean a termination of Employment from the Firm (as defined by the Firm) which is also a separation from service (as defined by the Firm in accordance with Section 409A).
(f) Notwithstanding any provision of Paragraph 8 or Section 2.8.2 of the Plan to the contrary, the Dividend Equivalent Rights with respect to each of your Outstanding One-Time RSUs shall be paid to you within the calendar year that includes the date of distribution of any corresponding regular cash dividends paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant. The payment shall be in an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Shares underlying such Outstanding One-Time RSUs.
(g) The timing of delivery or payment referred to in Paragraph 9(g) shall be the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the Committee receives satisfactory documentation relating to your Conflicted Employment, provided that such delivery or payment shall be made only at such time as, and if and to the extent that it, as reasonably determined by the Firm, would not result in the imposition of any additional tax to you under Section 409A.
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(h) Paragraph 10 and Section 3.4 of the Plan shall not apply to Awards that are 409A deferred compensation.
(i) Delivery of Shares in respect of any Award may be made, if and to the extent elected by the Committee, later than the Delivery Date or other date or period specified hereinabove (but, in the case of any Award that constitutes 409A deferred compensation, only to the extent that the later delivery is permitted under Section 409A).
(j) The Grantee understands and agrees that the Grantee is solely responsible for the payment of any taxes and penalties due pursuant to Section 409A.
16. Compliance of Award Agreement and Plan with Section 457A. To the extent the Committee or the Plans committee that has been delegated certain authority by the Committee (the SIP Committee) determines that (i) Section 457A of the Code or any guidance promulgated thereunder (Section 457A) requires that, in order to qualify for the short-term deferral exception from treatment as deferred compensation under Section 457A(d)(3)(B) of the Code, the documents governing an Award must specify that such Award will be delivered within the period set forth in Section 457A(d)(3)(B) of the Code and (ii) all or any portion of this Award is or becomes subject to Section 457A, this Award Agreement will be deemed to be amended as of the Date of Grant (as the Committee or the SIP Committee determines necessary or appropriate after consultation with counsel) to provide that delivery of One-Time RSUs will occur no later than 12 months after the end of the taxable year in which the right to delivery is first no longer subject to a substantial risk of forfeiture (as defined under Section 457A); provided, however, that no action or modification will be permitted to the extent that such action or modification would cause such Award to fail to satisfy the conditions of an applicable exception from the requirements of Section 409A or otherwise would result in an additional tax imposed under Section 409A in respect of such Award.
17. Headings. The headings in this Award Agreement are for the purpose of convenience only and are not intended to define or limit the construction of the provisions hereof.
IN WITNESS WHEREOF, GS Inc. has caused this Award Agreement to be duly executed and delivered as of the Date of Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | ||
Title: |
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Exhibit 10.44
The Goldman Sachs Group, Inc.
SIGNATURE CARD FOR YEAR-END AWARDS AND THE BNY MELLON CUSTODY ACCOUNT
AND CONSENT TO RECEIVE ELECTRONIC DELIVERY
IMPORTANT: PLEASE REVIEW, EXECUTE AND RETURN THIS FORM TO: EQUITY COMPENSATION
(DIVISION OF HCM), 30 HUDSON STREET, 34TH FLOOR, JERSEY CITY, NJ 07302.
YOU MUST PROPERLY EXECUTE THIS FORM TO ACKNOWLEDGE ACCEPTANCE OF THE TERMS AND
CONDITIONS OF YOUR AWARD(S) AND RELATED MATTERS.
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Signature: | Date: | |||||||
Print Name: | Employee ID #: |
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Exhibit 10.45
The Goldman Sachs Group, Inc.
SIGNATURE CARD FOR ____ YEAR-END AWARDS (ASIA) AND THE BNY MELLON CUSTODY ACCOUNT
AND CONSENT TO RECEIVE ELECTRONIC DELIVERY
IMPORTANT: PLEASE REVIEW, EXECUTE AND RETURN THIS FORM TO: EQUITY COMPENSATION
(DIVISION OF HCM), 30 HUDSON STREET, 34TH FLOOR, JERSEY CITY, NJ 07302.
YOU MUST PROPERLY EXECUTE THIS FORM TO ACKNOWLEDGE ACCEPTANCE OF THE TERMS AND CONDITIONS OF YOUR AWARD(S) AND RELATED MATTERS.
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Signature: | Date: | |||||||
Print Name: | Employee ID #: |
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Exhibit 10.46
The Goldman Sachs Group, Inc.
SIGNATURE CARD FOR YEAR-END AWARDS (CHINA) AND THE BNY MELLON CUSTODY ACCOUNT AND
CONSENT TO RECEIVE ELECTRONIC DELIVERY
IMPORTANT: PLEASE REVIEW, EXECUTE AND RETURN THIS FORM TO: EQUITY COMPENSATION
(DIVISION OF HCM), 30 HUDSON STREET, 34TH FLOOR, JERSEY CITY, NJ 07302.
YOU MUST PROPERLY EXECUTE THIS FORM TO ACKNOWLEDGE ACCEPTANCE OF THE TERMS AND CONDITIONS OF YOUR AWARD(S) AND RELATED MATTERS.
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Signature: | Date: | |||||||
Print Name: | Employee ID #: |
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Exhibit 10.47
THE GOLDMAN SACHS AMENDED AND RESTATED
STOCK INCENTIVE PLAN
YEAR-END RSU AWARD
This Award Agreement sets forth the terms and conditions of the Year-End award (this Award) of RSUs (Year-End RSUs) granted to you under The Goldman Sachs 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. IN LIGHT OF THE U.S. TAX RULES RELATING TO DEFERRED COMPENSATION IN SECTION 409A OF THE CODE, TO THE EXTENT THAT YOU ARE A UNITED STATES TAXPAYER, CERTAIN PROVISIONS OF THIS AWARD AGREEMENT AND OF THE PLAN SHALL APPLY ONLY AS PROVIDED IN PARAGRAPH 15.
2. Award. The number of Year-End RSUs subject to this Award is set forth in the Award Statement delivered to you. An RSU is an unfunded and unsecured promise to deliver (or cause to be delivered) to you, subject to the terms and conditions of this Award Agreement, a share of Common Stock (a Share) on the Delivery Date or as otherwise provided herein. Until such delivery, you have only the rights of a general unsecured creditor, and no rights as a shareholder of GS Inc. In addition, some or all of any Shares delivered in respect of your Year-End RSUs will be subject to transfer restrictions following the Delivery Date as described in Paragraph 3(b)(iv) below. THIS AWARD IS CONDITIONED ON YOUR EXECUTING THE RELATED SIGNATURE CARD AND RETURNING IT TO THE ADDRESS DESIGNATED ON THE SIGNATURE CARD AND/OR BY THE METHOD DESIGNATED ON THE SIGNATURE CARD BY THE DATE SPECIFIED, 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 12. BY EXECUTING THE RELATED SIGNATURE CARD (WHICH, AMONG OTHER THINGS, OPENS THE CUSTODY ACCOUNT REFERRED TO IN PARAGRAPH 3(b) 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. Vesting and Delivery and Transfer Restrictions.
(a) Vesting. Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 6, 7, 9, 10 and 15, on each Vesting Date you shall become Vested in the number or percentage of Year-End RSUs specified next to such Vesting Date on the Award Statement (which may be rounded to avoid fractional Shares). When a Year-End RSU becomes Vested, it means only that your continued active Employment is not required in order to receive delivery of the Shares underlying your Outstanding Year-End RSUs that are or become Vested. However, all other terms and conditions of this Award Agreement shall continue to apply to such Vested Year-End RSUs, and failure to meet such terms and conditions may result in the termination of this Award (as a result of which, no Shares underlying such Vested Year-End RSUs would be delivered).
(b) Delivery and Transfer Restrictions.
(i) The Delivery Date with respect to the number or percentage of your Year-End RSUs shall be the date specified next to such number or percentage of Year-End RSUs on your Award Statement. In accordance with Treasury Regulations section (Reg.) 1.409A-3(d), the Firm may accelerate delivery to a date that is up to 30 days before the Delivery Date specified on the Award Statement; provided, however, that in no event shall you be permitted to designate, directly or indirectly, the taxable year of the delivery.
(ii) Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 5, 6, 7, 9, 10, 15 and 16, in accordance with Section 3.23 of the Plan, reasonably promptly (but in no case more than 30 Business Days) after each date specified as a Delivery Date (or any other date delivery of Shares is called for hereunder), Shares underlying the number or percentage of your then Outstanding Year-End RSUs with respect to which such Delivery Date (or other date) has occurred (which number of Shares may be rounded to avoid fractional Shares) shall be delivered by book entry credit to your Custody Account or to a brokerage account, as approved or required by the Firm. Notwithstanding the foregoing, if you are or become considered by GS Inc. to be one of its covered employees within the meaning of Section 162(m) of the Code, then you shall be subject to Section 3.21.3 of the Plan, as a result of which delivery of your Shares may be delayed.
(iii) In accordance with Section 1.3.2(i) of the Plan, in the discretion of the Committee, in lieu of all or any portion of the Shares otherwise deliverable in respect of all or any portion of your Year-End RSUs, the Firm may deliver cash, other securities, other awards under the Plan or other property, and all references in this Award Agreement to deliveries of Shares shall include such deliveries of cash, other securities, other awards under the Plan or other property.
(iv) Except as provided in this Paragraph 3(b)(iv) and Paragraphs 3(c), 7, and 9(g), the following Shares delivered to you in respect of your Year-End RSUs shall not be permitted to be sold, exchanged, transferred, assigned, pledged, hypothecated, fractionalized, hedged or otherwise disposed of (including through the use of any cash-settled instrument), whether voluntarily or involuntarily by you (such restrictions collectively referred to herein as the Transfer Restrictions):
(1) If the withholding rate applicable to the delivery of Shares on a Delivery Date (or any other date delivery of Shares is called for hereunder) is at least 50%, then all the Shares delivered to you (after application of the withholding) in respect of your Year-End RSUs on such date will be subject to the Transfer Restrictions until the date specified in your Award Statement as the Transferability Date (the Transferability Date).
(2) If the withholding rate applicable to the delivery of Shares on a Delivery Date (or any other date delivery of Shares is called for hereunder) is less than 50%, then 50% of the Shares scheduled to be delivered to you (prior to application of any withholding) on such date will be subject to the Transfer Restrictions until the Transferability Date and the remaining Shares delivered to you (after application of any withholding) on such date will not be subject to the Transfer Restrictions. Shares may be rounded to avoid fractional Shares.
Shares that are subject to Transfer Restrictions are referred to in this Award Agreement as Shares at Risk. Any purported sale, exchange, transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition in violation of the Transfer Restrictions shall be void. If and to the extent your Shares at Risk are certificated, the Certificates representing the Shares at Risk are subject to the restrictions in this Paragraph 3(b)(iv), and GS Inc. shall advise its transfer agent to place a stop order against your Shares at Risk. Within 30 Business Days after the applicable Transferability Date (or any other date described herein on which the Transfer Restrictions are removed), GS Inc. shall take, or shall cause to be taken, such steps as may be necessary to remove the Transfer Restrictions.
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(v) In the discretion of the Committee, delivery of Shares (including Shares at Risk) may be made initially into an escrow account meeting such terms and conditions as are determined by the Firm and may be held in that escrow account until such time as the Committee has received such documentation as it may have requested or until the Committee has determined that any other conditions or restrictions on delivery of Shares required by this Award Agreement have been satisfied. By accepting your Year-End RSUs, you have agreed on behalf of yourself (and your estate or other permitted beneficiary) that the Firm may establish and maintain an escrow account on such terms and conditions (which may include, without limitation, your (or your estate or beneficiary) executing any documents related to, and your (or your estate or beneficiary) paying for any costs associated with, such account) as the Firm may deem necessary or appropriate. Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in escrow may be accumulated and shall be paid as determined by the Firm in its sole discretion.
(c) Death. Notwithstanding any other Paragraph of this Award Agreement (except Paragraph 15), if you die prior to the Delivery Date and/or the Transferability Date, the Shares underlying your then Outstanding Year-End RSUs shall be delivered to the representative of your estate and any Transfer Restrictions shall cease to apply as soon as practicable after the date of death and after such documentation as may be requested by the Committee is provided to the Committee. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Outstanding Year-End RSUs under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
4. Termination of Year-End RSUs and Non-Delivery of Shares; Termination of Shares at Risk.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 3(c), 6, 7, and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, your rights in respect of your Year-End RSUs that were Outstanding but that had not yet become Vested prior to your termination of Employment immediately shall terminate, such Year-End RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof. Unless the Committee determines otherwise, and except as provided in Paragraphs 3(c), 7, and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, any Transfer Restrictions shall continue to apply until the Transferability Date as provided in Paragraph 3(b)(iv).
(b) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of all of your Outstanding Year-End RSUs (whether or not Vested) immediately shall terminate, such Year-End RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof if:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
(ii) any event that constitutes Cause has occurred;
(iii) (A) you, in any manner, directly or indirectly, (1) Solicit any Client to transact business with a Competitive Enterprise or to reduce or refrain from doing any business with the Firm, (2) interfere with or damage (or attempt to interfere with or damage) any relationship between the Firm and any Client, (3) Solicit any person who is an employee of the Firm to resign from the Firm or to apply for or accept
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employment with any Competitive Enterprise or (4) on behalf of yourself or any person or Competitive Enterprise hire, or participate in the hiring of, any Selected Firm Personnel or identify, or participate in the identification of, Selected Firm Personnel for potential hiring, whether as an employee or consultant or otherwise, or (B) Selected Firm Personnel are Solicited, hired or accepted into partnership, membership or similar status (1) by a Competitive Enterprise that you form, that bears your name, in which you are a partner, member or have similar status, or in which you possess or control greater than a de minimis equity ownership, voting or profit participation or (2) by any Competitive Enterprise where you have, or are intended to have, direct or indirect managerial or supervisory responsibility for such Selected Firm Personnel;
(iv) you fail to certify to GS Inc., in accordance with procedures established by the Committee, that you have complied, or the Committee determines that you in fact have failed to comply, with all the terms and conditions of the Plan and this Award Agreement. By accepting the delivery of Shares under this Award Agreement, you shall be deemed to have represented and certified at such time that you have complied with all the terms and conditions of the Plan and this Award Agreement;
(v) the Committee determines that you failed to meet, in any respect, any obligation you may have under any agreement between you and the Firm, or any agreement entered into in connection with your Employment with the Firm or this Award, including, without limitation, the Firms 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;
(vi) as a result of any action brought by you, it is determined that any of the terms or conditions for delivery of Shares in respect of this Award Agreement are invalid; or
(vii) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Outstanding Year-End RSUs.
For purposes of the foregoing, the term Selected Firm Personnel means: (A) any Firm employee or consultant (1) with whom you personally worked while employed by the Firm, or (2) 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 (B) any Managing Director of the Firm.
(c) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of all of your Shares at Risk immediately shall terminate and such Shares at Risk shall be cancelled (and shall be subject to repayment in a manner similar to the provisions described in Paragraph 5) if:
(i) any event constituting Cause has occurred;
(ii) 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 or this Award, including, without limitation, the Firms 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;
(iii) 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; or
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(iv) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Shares at Risk.
(d) For the avoidance of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm shall constitute (i) failure to meet an obligation you have under an agreement referred to in Paragraphs 4(b)(v) and 4(c)(ii), regardless of whether such obligation arises under a written agreement, and/or (ii) a material violation of Firm policy constituting Cause referred to in Paragraphs 4(b)(ii) and 4(c)(i).
(e) Unless the Committee determines otherwise, without limiting any other provision in Paragraphs 4(b) or 4(c), and except as provided in Paragraph 7, if the Committee determines that, during the Firms fiscal year, you participated in the structuring or marketing of any product or service, or participated on behalf of the Firm or any of its clients in the purchase or sale of any security or other property, in any case without appropriate consideration of the risk to the Firm or the broader financial system as a whole (for example, where you have improperly analyzed such risk or where you have failed sufficiently to raise concerns about such risk) and, as a result of such action or omission, the Committee determines there has been, or reasonably could be expected to be, a material adverse impact on the Firm, your business unit or the broader financial system, your rights in respect of your Year-End RSUs awarded as part of this Award (whether or not Vested) immediately shall terminate, such Year-End RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof (and any Shares, payments under Dividend Equivalent Rights, dividends on Shares at Risk or other amounts paid or delivered to you in respect of this Award shall be subject to repayment in accordance with, or in a manner similar to the provisions described in, Paragraph 5) and any Shares at Risk shall be cancelled.
5. Repayment. The provisions of Section 2.6.3 of the Plan (which require Grantees to repay to the Firm amounts delivered to them if the Committee determines that all terms and conditions of this Award Agreement in respect of such delivery were not satisfied) shall apply to this Award which, for the avoidance of doubt, includes all amounts received under this Award, including Shares at Risk, dividends and payments under Dividend Equivalent Rights.
6. Extended Absence, Retirement, Downsizing and Approved Termination for Program Analysts.
(a) Notwithstanding any other provision of this Award Agreement, but subject to Paragraph 6(b), in the event of the termination of your Employment (determined as described in Section 1.2.19 of the Plan) by reason of Extended Absence or Retirement (as defined below), the condition set forth in Paragraph 4(a) shall be waived with respect to any Year-End RSUs 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 RSUs shall become Vested), but all other terms and conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions). Notwithstanding anything to the contrary in the Plan or otherwise, Retirement means termination of your Employment (other than for Cause) on or after the Date of Grant at a time when (i) (A) the sum of your age plus years of service with the Firm (as determined by the Committee in its sole discretion) equals or exceeds 60 and (B) you have completed at least 10 years of service with the Firm (as determined by the Committee in its sole discretion) or, if earlier, (ii) (A) you have attained age 50 and (B) you have completed at least five years of service with the Firm (as determined by the Committee in its sole discretion). Any termination of Employment by reason of Extended Absence or Retirement shall not affect any applicable Transfer Restrictions, and any Transfer Restrictions shall continue to apply until the Transferability Date as provided in Paragraph 3(b)(iv).
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(b) Without limiting the application of Paragraphs 4(b), 4(c) and 4(e), your rights in respect of your Outstanding Year-End RSUs that become Vested in accordance with Paragraph 6(a) immediately shall terminate, such Outstanding Year-End RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect thereof if, prior to the original Vesting Date with respect to such Year-End RSUs, you (i) form, or acquire a 5% or greater equity ownership, voting or profit participation interest in, any Competitive Enterprise, or (ii) associate in any capacity (including, but not limited to, association as an officer, employee, partner, director, consultant, agent or advisor) with any Competitive Enterprise. Notwithstanding the foregoing, unless otherwise determined by the Committee in its discretion, this Paragraph 6(b) 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.
(c) Notwithstanding any other provision of this Award Agreement and subject to your executing such general waiver and release of claims and an agreement to pay any associated tax liability, both as may be prescribed by the Firm or its designee, if your Employment is terminated without Cause solely by reason of a downsizing, the condition set forth in Paragraph 4(a) shall be waived with respect to your Year-End RSUs 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 RSUs shall become Vested), but all other conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions). 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. Your termination of Employment by reason of downsizing shall not affect any applicable Transfer Restrictions, and any Transfer Restrictions shall continue to apply until the Transferability Date as provided in Paragraph 3(b)(iv).
(d) Notwithstanding any other provision of this Award Agreement, if you are classified by the Firm as a program analyst, and your Employment is terminated without Cause solely by reason of an approved termination with respect to your participation in the program prior to any Vesting Date specified on your Award Statement, the condition set forth in Paragraph 4(a) shall be waived with respect to any Year-End RSUs that were Outstanding but had not yet become Vested immediately prior to such termination of Employment (as a result of which such Year-End RSUs shall become Vested), but all other conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions). Unless otherwise determined by the Committee, for purposes of this Paragraph 6(d), an approved termination shall mean a termination of Employment from the analyst program where you: (i) successfully complete the analyst program (as determined by the Firm in its sole discretion), which shall include, but not be limited to, remaining Employed by the Firm through the analyst program completion date specified by the Firm and (ii) terminate Employment with the Firm immediately after you complete the analyst program, without any stay-on or other agreement or understanding to continue Employment with the Firm. If you agree to stay with the Firm as an employee after your analyst program ends and then later terminate Employment, you will not have an approved termination. An approved termination shall not affect any applicable Transfer Restrictions, and any Transfer Restrictions shall continue to apply until the Transferability Date as provided in Paragraph 3(b)(iv).
7. Change in Control. Notwithstanding anything to the contrary in this Award Agreement (except Paragraph 15), in the event a Change in Control shall occur and within 18 months thereafter the Firm terminates your Employment without Cause or you terminate your Employment for Good Reason, all Shares underlying your then Outstanding Year-End RSUs, whether or not Vested, shall be delivered and any Transfer Restrictions shall cease to apply.
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8. Dividend Equivalent Rights; Dividends. Each Year-End RSU shall include a Dividend Equivalent Right. Accordingly, with respect to each of your Outstanding Year-End RSUs, at or after the time of distribution of any regular cash dividend paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant, you shall be entitled to receive an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Share underlying such Outstanding Year-End RSU. Payment in respect of a Dividend Equivalent Right shall be made only with respect to Year-End RSUs that are Outstanding on the relevant record date. Each Dividend Equivalent Right shall be subject to the provisions of Section 2.8.2 of the Plan. You shall be entitled to receive on a current basis any regular cash dividend paid by GS Inc. in respect of your Shares at Risk, or, if the Shares at Risk are held in escrow, the Firm will direct the transfer/paying agent to distribute the dividends to you in respect of your Shares at Risk.
9. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan. To the extent permitted by applicable law, the Firm, in its sole discretion, may require you to provide amounts equal to all or a portion of any Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection with the grant, vesting or delivery of this Award by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award. In addition, if you are an individual with separate employment contracts (at any time during and/or after the Firms fiscal year), the Firm may, in its sole discretion, require you to provide for a reserve in an amount the Firm determines is advisable or necessary in connection with any actual, anticipated or potential tax consequences related to your separate employment contracts by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award (or any other Outstanding Awards under the Plan). In no event, however, shall any choice you may have under the preceding two sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or the timing of payment of tax obligations.
(b) If you are or become a Managing Director, your rights in respect of the Year-End RSUs are conditioned on your becoming a party to any shareholders agreement to which other similarly situated employees of the Firm are a party.
(c) Your rights in respect of your Year-End RSUs are conditioned on the receipt to the full satisfaction of the Committee of any required consents (as described in Section 3.3 of the Plan) that the Committee may determine to be necessary or advisable.
(d) You understand and agree, in accordance with Section 3.3 of the Plan, by accepting this Award, you have expressly consented to all of the items listed in Section 3.3.3(d) of the Plan, which are incorporated herein by reference.
(e) You understand and agree, in accordance with Section 3.22 of the Plan, by accepting this Award you have agreed to be subject to the Firms policies in effect from time to time concerning trading in Shares and hedging or pledging Shares and equity-based compensation or other awards (including, without limitation, the Firms 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 RSUs in accordance with such rules and procedures as may be adopted from time to time with respect to sales of such Shares (which may include, without limitation, restrictions relating to the timing of sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation of orders and volume limits determined by the Firm). In addition, you understand and agree that you shall be responsible for all brokerage costs and other fees or expenses associated with your Year-End RSU Award, including, without limitation, such brokerage costs or other fees or expenses in connection with the sale of Shares delivered to you hereunder.
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(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under a separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
(g) Without limiting the application of Paragraphs 4(b), 4(c) and 4(e), if:
(i) your Employment with the Firm terminates solely because you resigned to accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding Year-End RSUs and/or Shares at Risk would result in an actual or perceived conflict of interest (Conflicted Employment); or
(ii) following your termination of Employment other than described in Paragraph 9(g)(i), you notify the Firm that you have accepted or intend to accept Conflicted Employment at a time when you continue to hold Outstanding Year-End RSUs and/or Shares at Risk;
then, in the case of Paragraph 9(g)(i) only, the condition set forth in Paragraph 4(a) shall be waived with respect to any Year-End RSUs 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 RSUs shall become Vested) and, in the case of Paragraphs 9(g)(i) and 9(g)(ii), any Transfer Restrictions shall cease to apply, and, at the sole discretion of the Firm, you shall receive either a lump sum cash payment in respect of, or delivery of Shares underlying, your then Outstanding Vested Year-End RSUs, in each case as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
(h) In addition to and without limiting the generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person shall have any liability to you or any other person for any action taken or omitted in respect of this or any other Award.
(i) You understand and agree that, in the event of your termination of Employment while you continue to hold Outstanding Vested Year-End RSUs and/or Shares at Risk, you may be required to certify, from time to time, your compliance with all terms and conditions of the Plan and this Award Agreement. You understand and agree that (i) it is your responsibility to inform the Firm of any changes to your address to ensure timely receipt of the certification materials, (ii) you are responsible for obtaining such certification materials by contacting the Firm if you do not receive certification materials, and (iii) failure to return properly completed certification materials by the deadline specified in the certification materials will result in the forfeiture of all of your Outstanding Year-End RSUs and Shares at Risk, as applicable, in accordance with Paragraphs 4(b)(iv) and 4(c)(iii).
10. Right of Offset. Except as provided in Paragraph 15(h), the obligation to deliver Shares or to remove the Transfer Restrictions under this Award Agreement is subject to Section 3.4 of the Plan, which provides for the Firms right to offset against such obligation any outstanding amounts you owe to the Firm and any amounts the Committee deems appropriate pursuant to any tax equalization policy or agreement.
11. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect; provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall
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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.
12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or as otherwise may be provided by the Committee, the limitations on transferability set forth in Section 3.5 of the Plan shall apply to this Award. Any purported transfer or assignment in violation of the provisions of this Paragraph 13 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all recipients of Year-End RSUs may transfer some or all of their Year-End RSUs and/or Shares at Risk (which shall continue to be subject to Transfer Restrictions until the Transferability Date) through a gift for no consideration to any immediate family member (as determined pursuant to the procedures) or a trust in which the recipient and/or the recipients immediate family members in the aggregate have 100% of the beneficial interest (as determined pursuant to the procedures).
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. Compliance of Award Agreement and Plan with Section 409A. The provisions of this Paragraph 15 apply to you only if you are a United States taxpayer.
(a) References in this Award Agreement to Section 409A refer to Section 409A of the Code, including any amendments or successor provisions to that Section and any regulations and other administrative guidance thereunder, in each case as they, from time to time, may be amended or interpreted through further administrative guidance. This Award Agreement and the Plan provisions that apply to this Award are intended and shall be construed to comply with Section 409A (including the requirements applicable to, or the conditions for exemption from treatment as, a deferral of compensation or deferred compensation as those terms are defined in the regulations under Section 409A (409A deferred compensation), whether by reason of short-term deferral treatment or other exceptions or provisions). The Committee shall have full authority to give effect to this intent. To the extent necessary to give effect to this intent, in the case of any conflict or potential inconsistency between the provisions of the Plan (including, without limitation, Sections 1.3.2 and 2.1 thereof) and this Award Agreement, the provisions of this Award Agreement shall govern, and in the case of any conflict or potential inconsistency between this Paragraph 15 and the other provisions of this Award Agreement, this Paragraph 15 shall govern.
(b) Delivery of Shares shall not be delayed beyond the date on which all applicable conditions or restrictions on delivery of Shares in respect of your Year-End RSUs required by this Agreement (including, without limitation, those specified in Paragraphs 3(b) and (c), 6(b) and (c) (execution of waiver and release of claims and agreement to pay associated tax liability) and 9 and the consents and other items specified in Section 3.3 of the Plan) are satisfied. To the extent that any portion of this Award is intended to satisfy the requirements for short-term deferral treatment under Section 409A, delivery for such portion shall occur by the
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March 15 coinciding with the last day of the applicable short-term deferral period described in Reg. 1.409A-1(b)(4) in order for the delivery of Shares to be within the short-term deferral exception unless, in order to permit all applicable conditions or restrictions on delivery to be satisfied, the Committee elects, pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted in accordance with Section 409A, to delay delivery of Shares to a later date within the same calendar year or to such later date as may be permitted under Section 409A, including, without limitation, Regs. 1.409A-2(b)(7) (in conjunction with Section 3.21.3 of the Plan pertaining to Code Section 162(m)) and 1.409A-3(d).
(c) Notwithstanding the provisions of Paragraph 3(b)(iii) and Section 1.3.2(i) of the Plan, to the extent necessary to comply with Section 409A, any securities, other Awards or other property that the Firm may deliver in respect of your Year-End RSUs shall not have the effect of deferring delivery or payment, income inclusion, or a substantial risk of forfeiture, beyond the date on which such delivery, payment or inclusion would occur or such risk of forfeiture would lapse, with respect to the Shares that would otherwise have been deliverable (unless the Committee elects a later date for this purpose pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted under Section 409A, including, without limitation and to the extent applicable, the subsequent election provisions of Section 409A(a)(4)(C) of the Code and Reg. 1.409A-2(b)).
(d) Notwithstanding the timing provisions of Paragraph 3(c), the delivery of Shares referred to therein shall be made after the date of death and during the calendar year that includes the date of death (or on such later date as may be permitted under Section 409A).
(e) The timing of delivery or payment pursuant to Paragraph 7 shall occur on the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the termination of Employment occurs; provided, however, that, if you are a specified employee (as defined by the Firm in accordance with Section 409A(a)(2)(i)(B) of the Code), delivery shall occur on the earlier of the Delivery Date or (to the extent required to avoid the imposition of additional tax under Section 409A) the date that is six months after your termination of Employment (or, if the latter date is not during a Window Period, the first trading day of the next Window Period). For purposes of Paragraph 7, references in this Award Agreement to termination of Employment mean a termination of Employment from the Firm (as defined by the Firm) which is also a separation from service (as defined by the Firm in accordance with Section 409A).
(f) Notwithstanding any provision of Paragraph 8 or Section 2.8.2 of the Plan to the contrary, the Dividend Equivalent Rights with respect to each of your Outstanding Year-End RSUs shall be paid to you within the calendar year that includes the date of distribution of any corresponding regular cash dividends paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant. The payment shall be in an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Shares underlying such Outstanding Year-End RSUs.
(g) The timing of delivery or payment referred to in Paragraph 9(g) shall be the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the Committee receives satisfactory documentation relating to your Conflicted Employment, provided that such delivery or payment shall be made only at such time as, and if and to the extent that it, as reasonably determined by the Firm, would not result in the imposition of any additional tax to you under Section 409A.
(h) Paragraph 10 and Section 3.4 of the Plan shall not apply to Awards that are 409A deferred compensation.
(i) Delivery of Shares in respect of any Award may be made, if and to the extent elected by the Committee, later than the Delivery Date or other date or period specified hereinabove (but, in the case of any Award that constitutes 409A deferred compensation, only to the extent that the later delivery is permitted under Section 409A).
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(j) The Grantee understands and agrees that the Grantee is solely responsible for the payment of any taxes and penalties due pursuant to Section 409A.
16. Compliance of Award Agreement and Plan with Section 457A. To the extent the Committee or the Plans committee that has been delegated certain authority by the Committee (the SIP Committee) determines that (i) Section 457A of the Code or any guidance promulgated thereunder (Section 457A) requires that, in order to qualify for the short-term deferral exception from treatment as deferred compensation under Section 457A(d)(3)(B) of the Code, the documents governing an Award must specify that such Award will be delivered within the period set forth in Section 457A(d)(3)(B) of the Code and (ii) all or any portion of this Award is or becomes subject to Section 457A, this Award Agreement will be deemed to be amended as of the Date of Grant (as the Committee or the SIP Committee determines necessary or appropriate after consultation with counsel) to provide that delivery of Year-End RSUs will occur no later than 12 months after the end of the taxable year in which the right to delivery is first no longer subject to a substantial risk of forfeiture (as defined under Section 457A); provided, however, that no action or modification will be permitted to the extent that such action or modification would cause such Award to fail to satisfy the conditions of an applicable exception from the requirements of Section 409A or otherwise would result in an additional tax imposed under Section 409A in respect of such Award.
17. Headings. The headings in this Award Agreement are for the purpose of convenience only and are not intended to define or limit the construction of the provisions hereof.
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IN WITNESS WHEREOF, GS Inc. has caused this Award Agreement to be duly executed and delivered as of the Date of Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | ||
Title: |
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Exhibit 10.48
THE GOLDMAN SACHS AMENDED AND RESTATED
STOCK INCENTIVE PLAN
YEAR-END RSU AWARD
This Award Agreement sets forth the terms and conditions of the Year-End award (this Award) of RSUs (Year-End RSUs) granted to you under The Goldman Sachs 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. IN LIGHT OF THE U.S. TAX RULES RELATING TO DEFERRED COMPENSATION IN SECTION 409A OF THE CODE, TO THE EXTENT THAT YOU ARE A UNITED STATES TAXPAYER, CERTAIN PROVISIONS OF THIS AWARD AGREEMENT AND OF THE PLAN SHALL APPLY ONLY AS PROVIDED IN PARAGRAPH 15.
2. Award. The number of Year-End RSUs subject to this Award is set forth in the Award Statement delivered to you. An RSU is an unfunded and unsecured promise to deliver (or cause to be delivered) to you, subject to the terms and conditions of this Award Agreement, a share of Common Stock (a Share) on the Delivery Date or as otherwise provided herein. Until such delivery, you have only the rights of a general unsecured creditor, and no rights as a shareholder of GS Inc. In addition, Shares delivered in respect of your Year-End RSUs will be subject to transfer restrictions following the Delivery Date as described in Paragraph 3(b)(iv) below. THIS AWARD IS CONDITIONED ON YOUR EXECUTING THE RELATED SIGNATURE CARD AND RETURNING IT TO THE ADDRESS DESIGNATED ON THE SIGNATURE CARD AND/OR BY THE METHOD DESIGNATED ON THE SIGNATURE CARD BY THE DATE SPECIFIED, 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 12. BY EXECUTING THE RELATED SIGNATURE CARD (WHICH, AMONG OTHER THINGS, OPENS THE CUSTODY ACCOUNT REFERRED TO IN PARAGRAPH 3(b) 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. Vesting and Delivery and Transfer Restrictions.
(a) Vesting. All of your Year-End RSUs shall be Vested on the Date of Grant. The fact that your Year-End RSUs are Vested means only that your continued active Employment is not required in order to receive delivery of the Shares underlying your Outstanding Year-End RSUs. However, all other terms and conditions of this Award Agreement shall continue to apply to such Year-End RSUs, and failure to meet such terms and conditions may result in the termination of this Award (as a result of which, no Shares underlying such Year-End RSUs would be delivered).
(b) Delivery and Transfer Restrictions.
(i) The Delivery Date with respect to the number or percentage of your Year-End RSUs shall be the date specified next to such number or percentage of Year-End RSUs on your Award Statement. In accordance with Treasury Regulations section (Reg.) 1.409A-3(d), the Firm may accelerate delivery to a date that is up to 30 days before the Delivery Date specified on the Award Statement; provided, however, that in no event shall you be permitted to designate, directly or indirectly, the taxable year of the delivery.
(ii) Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 5, 7, 9, 10, 15 and 16, in accordance with Section 3.23 of the Plan, reasonably promptly (but in no case more than 30 Business Days) after each date specified as a Delivery Date (or any other date delivery of Shares is called for hereunder), Shares underlying the number or percentage of your then Outstanding Year-End RSUs with respect to which such Delivery Date (or other date) has occurred (which number of Shares may be rounded to avoid fractional Shares) shall be delivered by book entry credit to your Custody Account or to a brokerage account, as approved or required by the Firm. Notwithstanding the foregoing, if you are or become considered by GS Inc. to be one of its covered employees within the meaning of Section 162(m) of the Code, then you shall be subject to Section 3.21.3 of the Plan, as a result of which delivery of your Shares may be delayed.
(iii) In accordance with Section 1.3.2(i) of the Plan, in the discretion of the Committee, in lieu of all or any portion of the Shares otherwise deliverable in respect of all or any portion of your Year-End RSUs, the Firm may deliver cash, other securities, other awards under the Plan or other property, and all references in this Award Agreement to deliveries of Shares shall include such deliveries of cash, other securities, other awards under the Plan or other property.
(iv) Except as provided in Paragraphs 3(c), 7, and 9(g), the following Shares delivered to you in respect of your Year-End RSUs shall not be permitted to be sold, exchanged, transferred, assigned, pledged, hypothecated, fractionalized, hedged or otherwise disposed of (including through the use of any cash-settled instrument), whether voluntarily or involuntarily by you (such restrictions collectively referred to herein as the Transfer Restrictions):
(1) If the withholding rate applicable to the delivery of Shares on a Delivery Date (or any other date delivery of Shares is called for hereunder) is at least 50%, then all the Shares delivered to you (after application of the withholding) in respect of your Year-End RSUs on such date will be subject to the Transfer Restrictions until the date specified in your Award Statement as the Transferability Date (the Transferability Date).
(2) If the withholding rate applicable to the delivery of Shares on a Delivery Date (or any other date delivery of Shares is called for hereunder) is less than 50%, then 50% of the Shares scheduled to be delivered to you (prior to application of any withholding) on such date will be subject to the Transfer Restrictions until the Transferability Date[, and the remaining Shares delivered to you (after application of any withholding) on such date will be subject to the Transfer Restrictions until the first trading day during a Window Period that occurs on or after the six-month anniversary of the Delivery Date]. Shares may be rounded to avoid fractional Shares.
Shares that are subject to Transfer Restrictions are referred to in this Award Agreement as Shares at Risk. Any date on which Transfer Restrictions lapse pursuant to this Paragraph 3(b)(iv) is referred to in this Award Agreement as an Applicable Transferability Date. Any purported sale, exchange, transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition in violation of the Transfer Restrictions shall be void. If and to the extent your Shares at Risk are certificated, the Certificates representing the Shares at Risk
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are subject to the restrictions in this Paragraph 3(b)(iv), and GS Inc. shall advise its transfer agent to place a stop order against your Shares at Risk. Within 30 Business Days after the Applicable Transferability Date (or any other date described herein on which the Transfer Restrictions are removed), GS Inc. shall take, or shall cause to be taken, such steps as may be necessary to remove the Transfer Restrictions.
(v) In the discretion of the Committee, delivery of Shares (including Shares at Risk) may be made initially into an escrow account meeting such terms and conditions as are determined by the Firm and may be held in that escrow account until such time as the Committee has received such documentation as it may have requested or until the Committee has determined that any other conditions or restrictions on delivery of Shares required by this Award Agreement have been satisfied. By accepting your Year-End RSUs, you have agreed on behalf of yourself (and your estate or other permitted beneficiary) that the Firm may establish and maintain an escrow account on such terms and conditions (which may include, without limitation, your (or your estate or beneficiary) executing any documents related to, and your (or your estate or beneficiary) paying for any costs associated with, such account) as the Firm may deem necessary or appropriate. Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in escrow may be accumulated and shall be paid as determined by the Firm in its sole discretion.
(c) Death. Notwithstanding any other Paragraph of this Award Agreement (except Paragraph 15), if you die prior to the Delivery Date and/or the Applicable Transferability Date, the Shares underlying your then Outstanding Year-End RSUs shall be delivered to the representative of your estate and any Transfer Restrictions shall cease to apply as soon as practicable after the date of death and after such documentation as may be requested by the Committee is provided to the Committee. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Outstanding Year-End RSUs under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
4. Termination of Year-End RSUs and Non-Delivery of Shares; Termination of Shares at Risk.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 3(c), 7, and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, any Transfer Restrictions shall continue to apply until the ApplicableTransferability Date as provided in Paragraph 3(b)(iv).
(b) Without limiting the application of Paragraphs 4(c), 4(d) and 4(f), and subject to Paragraph 6(b):
(i) your rights in respect of all Year-End RSUs shall terminate, such Outstanding Year-End RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect thereof, if you engage in Competition (as defined below) prior to the earlier of December 31, or the date on which your Year-End RSUs become deliverable following a Change in Control in accordance with Paragraph 7 hereof;
(ii) your rights in respect of the number or percentage of Year-End RSUs that are scheduled to deliver in January and January shall terminate, such number of Year-End RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect thereof, if you engage in Competition on or after December 31, , but prior to the earlier of December 31, or the date on which your Year-End RSUs become deliverable following a Change in Control in accordance with Paragraph 7 hereof; and
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(iii) your rights in respect of the number or percentage of Year-End RSUs that are scheduled to deliver in January ____ shall terminate, such number of Year-End RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect thereof, if you engage in Competition on or after December 31, ____, but prior to the earlier of December 31, ____ or the date on which your Year-End RSUs become deliverable following a Change in Control in accordance with Paragraph 7 hereof.
For purposes of this Award Agreement, Competition means that you (i) form, or acquire a 5% or greater equity ownership, voting or profit participation interest in, any Competitive Enterprise, or (ii) associate in any capacity (including, but not limited to, association as an officer, employee, partner, director, consultant, agent or advisor) with any Competitive Enterprise.
(c) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of all of your Outstanding Year-End RSUs immediately shall terminate, such Year-End RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof if:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
(ii) any event that constitutes Cause has occurred;
(iii) (A) you, in any manner, directly or indirectly, (1) Solicit any Client to transact business with a Competitive Enterprise or to reduce or refrain from doing any business with the Firm, (2) interfere with or damage (or attempt to interfere with or damage) any relationship between the Firm and any Client, (3) Solicit any person who is an employee of the Firm to resign from the Firm or to apply for or accept employment with any Competitive Enterprise or (4) on behalf of yourself or any person or Competitive Enterprise hire, or participate in the hiring of, any Selected Firm Personnel or identify, or participate in the identification of, Selected Firm Personnel for potential hiring, whether as an employee or consultant or otherwise, or (B) Selected Firm Personnel are Solicited, hired or accepted into partnership, membership or similar status (1) by a Competitive Enterprise that you form, that bears your name, in which you are a partner, member or have similar status, or in which you possess or control greater than a de minimis equity ownership, voting or profit participation or (2) by any Competitive Enterprise where you have, or are intended to have, direct or indirect managerial or supervisory responsibility for such Selected Firm Personnel;
(iv) you fail to certify to GS Inc., in accordance with procedures established by the Committee, that you have complied, or the Committee determines that you in fact have failed to comply, with all the terms and conditions of the Plan and this Award Agreement. By accepting the delivery of Shares under this Award Agreement, you shall be deemed to have represented and certified at such time that you have complied with all the terms and conditions of the Plan and this Award Agreement;
(v) the Committee determines that you failed to meet, in any respect, any obligation you may have under any agreement between you and the Firm, or any agreement entered into in connection with your Employment with the Firm or this Award, including, without limitation, the Firms 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;
(vi) as a result of any action brought by you, it is determined that any of the terms or conditions for delivery of Shares in respect of this Award Agreement are invalid;
(vii) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Outstanding Year-End RSUs;
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(viii) [GS Inc. fails to maintain the required Minimum Tier 1 Capital Ratio as defined under Federal Reserve Board Regulations applicable to GS Inc. for a period of 90 consecutive business days; or ]
(ix) [the Board of Governors of the Federal Reserve or the Federal Deposit Insurance Corporation (the FDIC) makes a written recommendation under Title II (Orderly Liquidation Authority) of the Dodd-Frank Wall Street Reform and Consumer Protection Act for the appointment of the FDIC as a receiver of GS Inc. based on a determination that GS Inc. is in default or in danger of default.]
For purposes of the foregoing, the term Selected Firm Personnel means: (A) any Firm employee or consultant (1) with whom you personally worked while employed by the Firm, or (2) 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 (B) any Managing Director of the Firm.
(d) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of all of your Shares at Risk immediately shall terminate and such Shares at Risk shall be cancelled (and shall be subject to repayment in a manner similar to the provisions described in Paragraph 5) if:
(i) any event constituting Cause has occurred;
(ii) 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 or this Award, including, without limitation, the Firms 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;
(iii) 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; or
(iv) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Shares at Risk.
(e) For the avoidance of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm shall constitute (i) failure to meet an obligation you have under an agreement referred to in Paragraphs 4(c)(v) and 4(d)(ii), regardless of whether such obligation arises under a written agreement, and/or (ii) a material violation of Firm policy constituting Cause referred to in Paragraphs 4(c)(ii) and 4(d)(i).
(f) Unless the Committee determines otherwise, without limiting any other provision in Paragraphs 4(c) or 4(d), and except as provided in Paragraph 7, if the Committee determines that, during the Firms ____ fiscal year, you participated in the structuring or marketing of any product or service, or participated on behalf of the Firm or any of its clients in the purchase or sale of any security or other property, in any case without appropriate consideration of the risk to the Firm or the broader financial system as a whole (for example, where you have improperly analyzed such risk or where you have failed sufficiently to raise concerns
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about such risk) and, as a result of such action or omission, the Committee determines there has been, or reasonably could be expected to be, a material adverse impact on the Firm, your business unit or the broader financial system, your rights in respect of your Year-End RSUs awarded as part of this Award immediately shall terminate, such Year-End RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof (and any Shares, payments under Dividend Equivalent Rights, dividends on Shares at Risk or other amounts paid or delivered to you in respect of this Award shall be subject to repayment in accordance with, or in a manner similar to the provisions described in, Paragraph 5) and any Shares at Risk shall be cancelled.
5. Repayment. The provisions of Section 2.6.3 of the Plan (which require Grantees to repay to the Firm amounts delivered to them if the Committee determines that all terms and conditions of this Award Agreement in respect of such delivery were not satisfied) shall apply to this Award which, for the avoidance of doubt, includes all amounts received under this Award, including Shares at Risk, dividends and payments under Dividend Equivalent Rights.
6. Certain Terminations of Employment.
(a) In the event of the termination of your Employment (determined as described in Section 1.2.19 of the Plan) for any reason, all terms and conditions of this Award Agreement shall continue to apply.
(b) Unless otherwise determined by the Committee in its discretion, Paragraph 4(b) will not apply following termination of Employment that 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.
7. Change in Control. Notwithstanding anything to the contrary in this Award Agreement (except Paragraph 15), in the event a Change in Control shall occur and within 18 months thereafter the Firm terminates your Employment without Cause or you terminate your Employment for Good Reason, all Shares underlying your then Outstanding Year-End RSUs shall be delivered and any Transfer Restrictions shall cease to apply.
8. Dividend Equivalent Rights; Dividends. Each Year-End RSU shall include a Dividend Equivalent Right. Accordingly, with respect to each of your Outstanding Year-End RSUs, at or after the time of distribution of any regular cash dividend paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant, you shall be entitled to receive an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Share underlying such Outstanding Year-End RSU. Payment in respect of a Dividend Equivalent Right shall be made only with respect to Year-End RSUs that are Outstanding on the relevant record date. Each Dividend Equivalent Right shall be subject to the provisions of Section 2.8.2 of the Plan. You shall be entitled to receive on a current basis any regular cash dividend paid by GS Inc. in respect of your Shares at Risk, or, if the Shares at Risk are held in escrow, the Firm will direct the transfer/paying agent to distribute the dividends to you in respect of your Shares at Risk.
9. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan. To the extent permitted by applicable law, the Firm, in its sole discretion, may require you to provide amounts equal to all or a portion of any Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection with the grant, vesting or
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delivery of this Award by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award. In addition, if you are an individual with separate employment contracts (at any time during and/or after the Firms ____ fiscal year), the Firm may, in its sole discretion, require you to provide for a reserve in an amount the Firm determines is advisable or necessary in connection with any actual, anticipated or potential tax consequences related to your separate employment contracts by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award (or any other Outstanding Awards under the Plan). In no event, however, shall any choice you may have under the preceding two sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or the timing of payment of tax obligations.
(b) If you are or become a Managing Director, your rights in respect of the Year-End RSUs are conditioned on your becoming a party to any shareholders agreement to which other similarly situated employees of the Firm are a party.
(c) Your rights in respect of your Year-End RSUs are conditioned on the receipt to the full satisfaction of the Committee of any required consents (as described in Section 3.3 of the Plan) that the Committee may determine to be necessary or advisable.
(d) You understand and agree, in accordance with Section 3.3 of the Plan, by accepting this Award, you have expressly consented to all of the items listed in Section 3.3.3(d) of the Plan, which are incorporated herein by reference.
(e) You understand and agree, in accordance with Section 3.22 of the Plan, by accepting this Award you have agreed to be subject to the Firms policies in effect from time to time concerning trading in Shares and hedging or pledging Shares and equity-based compensation or other awards (including, without limitation, the Firms 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 RSUs in accordance with such rules and procedures as may be adopted from time to time with respect to sales of such Shares (which may include, without limitation, restrictions relating to the timing of sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation of orders and volume limits determined by the Firm). In addition, you understand and agree that you shall be responsible for all brokerage costs and other fees or expenses associated with your Year-End RSU Award, including without limitation, such brokerage costs or other fees or expenses in connection with the sale of Shares delivered to you hereunder.
(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under a separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
(g) Without limiting the application of Paragraphs 4(c), 4(d) and 4(f), if:
(i) your Employment with the Firm terminates solely because you resigned to accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding Year-End RSUs and/or Shares at Risk would result in an actual or perceived conflict of interest (Conflicted Employment); or
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(ii) following your termination of Employment other than described in Paragraph 9(g)(i), you notify the Firm that you have accepted or intend to accept Conflicted Employment at a time when you continue to hold Outstanding Year-End RSUs and/or Shares at Risk;
then any Transfer Restrictions shall cease to apply, and, at the sole discretion of the Firm, you shall receive either a lump sum cash payment in respect of, or delivery of Shares underlying, your then Outstanding Year-End RSUs, in each case as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
(h) In addition to and without limiting the generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person shall have any liability to you or any other person for any action taken or omitted in respect of this or any other Award.
(i) You understand and agree that, in the event of your termination of Employment while you continue to hold Outstanding Year-End RSUs and/or Shares at Risk, you may be required to certify, from time to time, your compliance with all terms and conditions of the Plan and this Award Agreement. You understand and agree that (i) it is your responsibility to inform the Firm of any changes to your address to ensure timely receipt of the certification materials, (ii) you are responsible for obtaining such certification materials by contacting the Firm if you do not receive certification materials, and (iii) failure to return properly completed certification materials by the deadline specified in the certification materials will result in the forfeiture of all of your Outstanding Year-End RSUs and Shares at Risk, as applicable, in accordance with Paragraphs 4(c)(iv) and 4(d)(iii).
10. Right of Offset. Except as provided in Paragraph 15(h), the obligation to deliver Shares or to remove the Transfer Restrictions under this Award Agreement is subject to Section 3.4 of the Plan, which provides for the Firms right to offset against such obligation any outstanding amounts you owe to the Firm and any amounts the Committee deems appropriate pursuant to any tax equalization policy or agreement.
11. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect; provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall materially adversely affect your rights and obligations under this Award Agreement without your consent; and provided further that the Committee expressly reserves its rights to amend 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.
12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or as otherwise may be provided by the Committee, the limitations on transferability set forth in Section 3.5 of the Plan shall apply to this Award. Any purported transfer or assignment in violation of the provisions of this Paragraph 13 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all recipients of Year-End RSUs may transfer some or all of their Year-End RSUs and/or Shares at Risk (which shall continue to be subject to Transfer Restrictions until the Applicable Transferability Date) through a gift for no consideration to any immediate family member (as determined pursuant to the procedures) or a trust in which the recipient and/or the recipients immediate family members in the aggregate have 100% of the beneficial interest (as determined pursuant to the procedures).
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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. Compliance of Award Agreement and Plan with Section 409A. The provisions of this Paragraph 15 apply to you only if you are a United States taxpayer.
(a) References in this Award Agreement to Section 409A refer to Section 409A of the Code, including any amendments or successor provisions to that Section and any regulations and other administrative guidance thereunder, in each case as they, from time to time, may be amended or interpreted through further administrative guidance. This Award Agreement and the Plan provisions that apply to this Award are intended and shall be construed to comply with Section 409A (including the requirements applicable to, or the conditions for exemption from treatment as, a deferral of compensation or deferred compensation as those terms are defined in the regulations under Section 409A (409A deferred compensation), whether by reason of short-term deferral treatment or other exceptions or provisions). The Committee shall have full authority to give effect to this intent. To the extent necessary to give effect to this intent, in the case of any conflict or potential inconsistency between the provisions of the Plan (including, without limitation, Sections 1.3.2 and 2.1 thereof) and this Award Agreement, the provisions of this Award Agreement shall govern, and in the case of any conflict or potential inconsistency between this Paragraph 15 and the other provisions of this Award Agreement, this Paragraph 15 shall govern.
(b) Delivery of Shares shall not be delayed beyond the date on which all applicable conditions or restrictions on delivery of Shares in respect of your Year-End RSUs required by this Agreement (including, without limitation, those specified in Paragraphs 3(b) and (c), 6(b) (execution of waiver and release of claims and agreement to pay associated tax liability) and 9 and the consents and other items specified in Section 3.3 of the Plan) are satisfied. To the extent that any portion of this Award is intended to satisfy the requirements for short-term deferral treatment under Section 409A, delivery for such portion shall occur by the March 15 coinciding with the last day of the applicable short-term deferral period described in Reg. 1.409A-1(b)(4) in order for the delivery of Shares to be within the short-term deferral exception unless, in order to permit all applicable conditions or restrictions on delivery to be satisfied, the Committee elects, pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted in accordance with Section 409A, to delay delivery of Shares to a later date within the same calendar year or to such later date as may be permitted under Section 409A, including, without limitation, Regs. 1.409A-2(b)(7) (in conjunction with Section 3.21.3 of the Plan pertaining to Code Section 162(m)) and 1.409A-3(d).
(c) Notwithstanding the provisions of Paragraph 3(b)(iii) and Section 1.3.2(i) of the Plan, to the extent necessary to comply with Section 409A, any securities, other Awards or other property that the Firm may deliver in respect of your Year-End RSUs shall not have the effect of deferring delivery or payment, income inclusion, or a substantial risk of forfeiture, beyond the date on which such delivery, payment or inclusion would occur or such risk of forfeiture would lapse, with respect to the Shares that would otherwise have been deliverable (unless the Committee elects a later date for this purpose pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted under Section 409A, including, without limitation and to the extent applicable, the subsequent election provisions of Section 409A(a)(4)(C) of the Code and Reg. 1.409A-2(b)).
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(d) Notwithstanding the timing provisions of Paragraph 3(c), the delivery of Shares referred to therein shall be made after the date of death and during the calendar year that includes the date of death (or on such later date as may be permitted under Section 409A).
(e) The timing of delivery or payment pursuant to Paragraph 7 shall occur on the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the termination of Employment occurs; provided, however, that, if you are a specified employee (as defined by the Firm in accordance with Section 409A(a)(2)(i)(B) of the Code), delivery shall occur on the earlier of the Delivery Date or (to the extent required to avoid the imposition of additional tax under Section 409A) the date that is six months after your termination of Employment (or, if the latter date is not during a Window Period, the first trading day of the next Window Period). For purposes of Paragraph 7, references in this Award Agreement to termination of Employment mean a termination of Employment from the Firm (as defined by the Firm) which is also a separation from service (as defined by the Firm in accordance with Section 409A).
(f) Notwithstanding any provision of Paragraph 8 or Section 2.8.2 of the Plan to the contrary, the Dividend Equivalent Rights with respect to each of your Outstanding Year-End RSUs shall be paid to you within the calendar year that includes the date of distribution of any corresponding regular cash dividends paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant. The payment shall be in an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Shares underlying such Outstanding Year-End RSUs.
(g) The timing of delivery or payment referred to in Paragraph 9(g) shall be the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the Committee receives satisfactory documentation relating to your Conflicted Employment, provided that such delivery or payment shall be made only at such time as, and if and to the extent that it, as reasonably determined by the Firm, would not result in the imposition of any additional tax to you under Section 409A.
(h) Paragraph 10 and Section 3.4 of the Plan shall not apply to Awards that are 409A deferred compensation.
(i) Delivery of Shares in respect of any Award may be made, if and to the extent elected by the Committee, later than the Delivery Date or other date or period specified hereinabove (but, in the case of any Award that constitutes 409A deferred compensation, only to the extent that the later delivery is permitted under Section 409A).
(j) The Grantee understands and agrees that the Grantee is solely responsible for the payment of any taxes and penalties due pursuant to Section 409A.
16. Compliance of Award Agreement and Plan with Section 457A. To the extent the Committee or the Plans committee that has been delegated certain authority by the Committee (the SIP Committee) determines that (i) Section 457A of the Code or any guidance promulgated thereunder (Section 457A) requires that, in order to qualify for the short-term deferral exception from treatment as deferred compensation under Section 457A(d)(3)(B) of the Code, the documents governing an Award must specify that such Award will be delivered within the period set forth in Section 457A(d)(3)(B) of the Code and (ii) all or any portion of this Award is or becomes subject to Section 457A, this Award Agreement will be deemed to be amended as of the Date of Grant (as the Committee or the SIP Committee determines necessary or appropriate after consultation with counsel) to provide that delivery of Year-End RSUs will occur no later than 12 months after the end of the taxable year in which the right to delivery is first no longer subject to a substantial risk of forfeiture (as defined under Section 457A); provided, however, that no action or modification will be permitted to the extent that such action or modification would cause such Award to fail to satisfy the conditions of an applicable exception from the requirements of Section 409A or otherwise would result in an additional tax imposed under Section 409A in respect of such Award.
17. Headings. The headings in this Award Agreement are for the purpose of convenience only and are not intended to define or limit the construction of the provisions hereof.
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IN WITNESS WHEREOF, GS Inc. has caused this Award Agreement to be duly executed and delivered as of the Date of Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | ||
Title: |
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Exhibit 10.49
THE GOLDMAN SACHS AMENDED AND RESTATED
STOCK INCENTIVE PLAN
____ YEAR-END RSU AWARD
This Award Agreement sets forth the terms and conditions of the ____ Year-End award (this Award) of RSUs (Year-End RSUs) granted to you under The Goldman Sachs 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. IN LIGHT OF THE U.S. TAX RULES RELATING TO DEFERRED COMPENSATION IN SECTION 409A OF THE CODE, TO THE EXTENT THAT YOU ARE A UNITED STATES TAXPAYER, CERTAIN PROVISIONS OF THIS AWARD AGREEMENT AND OF THE PLAN SHALL APPLY ONLY AS PROVIDED IN PARAGRAPH 15.
2. Award. The number of Year-End RSUs subject to this Award is set forth in the Award Statement delivered to you and is comprised of the number of RSUs designated on your Award Statement as ____ Year-End RSUs and ____ Year-End Supplemental RSUs. The RSUs that are designated on your Award Statement as ____ Year-End RSUs (and not ____ Year-End Supplemental RSUs) are referred to in this Award Agreement as Base RSUs. The RSUs that are designated on your Award Statement as ____ Year-End Supplemental RSUs are referred to in this Award Agreement as Supplemental RSUs. Unless otherwise provided, all references to Year-End RSUs include both the Supplemental RSUs and the Base RSUs. (For the avoidance of doubt, this Award Agreement does not govern the terms and conditions of the RSUs designated on your Award Statement as ____ Year-End Short-Term RSUs, which are addressed separately in the ____ Year-End Short-Term RSU Award Agreement.) An RSU is an unfunded and unsecured promise to deliver (or cause to be delivered) to you, subject to the terms and conditions of this Award Agreement, a share of Common Stock (a Share) on the Delivery Date or as otherwise provided herein. Until such delivery, you have only the rights of a general unsecured creditor, and no rights as a shareholder of GS Inc. In addition, Shares delivered in respect of your Year-End RSUs will be subject to transfer restrictions following the Delivery Date as described in Paragraph 3(b)(iv) below. THIS AWARD IS CONDITIONED ON YOUR EXECUTING THE RELATED SIGNATURE CARD AND RETURNING IT TO THE ADDRESS DESIGNATED ON THE SIGNATURE CARD AND/OR BY THE METHOD DESIGNATED ON THE SIGNATURE CARD BY THE DATE SPECIFIED, 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 12. BY EXECUTING THE RELATED SIGNATURE CARD (WHICH, AMONG OTHER THINGS, OPENS THE CUSTODY ACCOUNT REFERRED TO IN PARAGRAPH 3(b) 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. Vesting and Delivery and Transfer Restrictions.
(a) Vesting. All of your Supplemental RSUs shall be Vested on the Date of Grant. Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 6, 7, 9, 10 and 15, on each Vesting Date you shall become Vested in the number or percentage of Base RSUs specified next to such Vesting Date on the Award Statement (which may be rounded to avoid fractional Shares). When a Year-End RSU becomes Vested, it means only that your continued active Employment is not required in order to receive delivery of the Shares underlying your Outstanding Year-End RSUs that are or become Vested. However, all other terms and conditions of this Award Agreement shall continue to apply to such Vested Year-End RSUs, and failure to meet such terms and conditions may result in the termination of this Award (as a result of which, no Shares underlying such Vested Year-End RSUs would be delivered).
(b) Delivery and Transfer Restrictions.
(i) The Delivery Date with respect to the number or percentage of your Year-End RSUs shall be the date specified next to such number or percentage of Year-End RSUs on your Award Statement, such that delivery applies first to Shares underlying the Supplemental RSUs and then to Shares underlying the Base RSUs. In accordance with Treasury Regulations section (Reg.) 1.409A-3(d), the Firm may accelerate delivery to a date that is up to 30 days before the Delivery Date specified on the Award Statement; provided, however, that in no event shall you be permitted to designate, directly or indirectly, the taxable year of the delivery.
(ii) Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 5, 6, 7, 9, 10, 15 and 16, in accordance with Section 3.23 of the Plan, reasonably promptly (but in no case more than 30 Business Days) after each date specified as a Delivery Date (or any other date delivery of Shares is called for hereunder), Shares underlying the number or percentage of your then Outstanding Year-End RSUs with respect to which such Delivery Date (or other date) has occurred (which number of Shares may be rounded to avoid fractional Shares) shall be delivered by book entry credit to your Custody Account or to a brokerage account, as approved or required by the Firm. Notwithstanding the foregoing, if you are or become considered by GS Inc. to be one of its covered employees within the meaning of Section 162(m) of the Code, then you shall be subject to Section 3.21.3 of the Plan, as a result of which delivery of your Shares may be delayed.
(iii) In accordance with Section 1.3.2(i) of the Plan, in the discretion of the Committee, in lieu of all or any portion of the Shares otherwise deliverable in respect of all or any portion of your Year-End RSUs, the Firm may deliver cash, other securities, other awards under the Plan or other property, and all references in this Award Agreement to deliveries of Shares shall include such deliveries of cash, other securities, other awards under the Plan or other property.
(iv) Except as provided in Paragraphs 3(c), 7, and 9(g), the following Shares delivered to you in respect of your Year-End RSUs shall not be permitted to be sold, exchanged, transferred, assigned, pledged, hypothecated, fractionalized, hedged or otherwise disposed of (including through the use of any cash-settled instrument), whether voluntarily or involuntarily by you (such restrictions collectively referred to herein as the Transfer Restrictions):
(A) Transfer Restrictions on Supplemental RSU Shares. All Shares delivered to you in respect of Supplemental RSUs (after application of any tax or other withholding) shall be subject to the Transfer Restrictions until the first trading day during a Window Period that occurs on or after the six-month anniversary of the Delivery Date.
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(B) Transfer Restrictions on Base RSU Shares.
(1) If the withholding rate applicable to the delivery of Shares underlying Base RSUs on a Delivery Date (or any other date delivery of Shares is called for hereunder) is at least 50%, then all the Shares delivered to you (after application of the withholding) in respect of such RSUs on such date will be subject to the Transfer Restrictions until the date specified for such RSUs in your Award Statement as the Transferability Date (the Transferability Date).
(2) If the withholding rate applicable to delivery of Shares underlying Base RSUs on a Delivery Date (or any other date delivery of Shares is called for hereunder) is less than 50%, then 50% of the Shares scheduled to be delivered to you (prior to application of any withholding) in respect of such RSUs on such date will be subject to the Transfer Restrictions until the Transferability Date. The remaining Shares underlying such RSUs delivered to you (after application of any withholding) on such date will be subject to the Transfer Restrictions until the first trading day during a Window Period that occurs on or after the six-month anniversary of the Delivery Date. Shares may be rounded to avoid fractional Shares.
Shares that are subject to Transfer Restrictions are referred to in this Award Agreement as Shares at Risk. Any date on which Transfer Restrictions lapse pursuant to this Paragraph 3(b)(iv) is referred to in this Award Agreement as an Applicable Transferability Date. Any purported sale, exchange, transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition in violation of the Transfer Restrictions shall be void. If and to the extent your Shares at Risk are certificated, the Certificates representing the Shares at Risk are subject to the restrictions in this Paragraph 3(b)(iv), and GS Inc. shall advise its transfer agent to place a stop order against your Shares at Risk. Within 30 Business Days after the Applicable Transferability Date (or any other date described herein on which the Transfer Restrictions are removed), GS Inc. shall take, or shall cause to be taken, such steps as may be necessary to remove the Transfer Restrictions.
(v) In the discretion of the Committee, delivery of Shares (including Shares at Risk) may be made initially into an escrow account meeting such terms and conditions as are determined by the Firm and may be held in that escrow account until such time as the Committee has received such documentation as it may have requested or until the Committee has determined that any other conditions or restrictions on delivery of Shares required by this Award Agreement have been satisfied. By accepting your Year-End RSUs, you have agreed on behalf of yourself (and your estate or other permitted beneficiary) that the Firm may establish and maintain an escrow account on such terms and conditions (which may include, without limitation, your (or your estate or beneficiary) executing any documents related to, and your (or your estate or beneficiary) paying for any costs associated with, such account) as the Firm may deem necessary or appropriate. Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in escrow may be accumulated and shall be paid as determined by the Firm in its sole discretion.
(vi) If you are a party to the Amended and Restated Shareholders Agreement (the Shareholders Agreement), Shares delivered with respect to your Year-End RSUs will be subject to the Shareholders Agreement, except that Shares delivered with respect to Supplemental RSUs will not be considered Covered Shares for purposes of Section 2.1(a) of the Shareholders Agreement.
(c) Death. Notwithstanding any other Paragraph of this Award Agreement (except Paragraph 15), if you die prior to the Delivery Date and/or the Applicable Transferability Date, the Shares underlying your then Outstanding Year-End RSUs shall be delivered to the representative of your estate and any Transfer Restrictions shall cease to apply as soon as practicable after the date of death and after such
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documentation as may be requested by the Committee is provided to the Committee. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Outstanding Year-End RSUs under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
4. Termination of Year-End RSUs and Non-Delivery of Shares; Termination of Shares at Risk.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 3(c), 6, 7, and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, your rights in respect of your Year-End RSUs that were Outstanding but that had not yet become Vested prior to your termination of Employment immediately shall terminate, such Year-End RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof. Unless the Committee determines otherwise, and except as provided in Paragraphs 3(c), 7, and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, any Transfer Restrictions shall continue to apply until the Applicable Transferability Date as provided in Paragraph 3(b)(iv).
(b) Without limiting the application of Paragraphs 4(c), 4(d) and 4(f), your rights in respect of the number or percentage of Supplemental RSUs that are scheduled to deliver on an applicable Delivery Date shall terminate, such number of Supplemental RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect thereof, if you engage in Competition on or prior to the earlier of (i) the December 31 that immediately precedes such Delivery Date or (ii) the date on which your Supplemental RSUs become deliverable following a Change in Control in accordance with Paragraph 7 hereof. For purposes of this Award Agreement, Competition means that 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 4(b) will not apply if your Employment is terminated without Cause solely by reason of a downsizing, or 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 or be solely by reason of a downsizing. Whether or not your Employment is terminated solely by reason of a downsizing shall be determined by the Firm in its sole discretion.
(c) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of all of your Outstanding Year-End RSUs (whether or not Vested) immediately shall terminate, such Year-End RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof if:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
(ii) any event that constitutes Cause has occurred;
(iii) (A) you, in any manner, directly or indirectly, (1) Solicit any Client to transact business with a Competitive Enterprise or to reduce or refrain from doing any business with the Firm, (2) interfere with or damage (or attempt to interfere with or damage) any relationship between the Firm and any Client, (3) Solicit any person who is an employee of the Firm to resign from the Firm or to apply for or accept employment with any Competitive Enterprise or (4) on behalf of yourself or any person or Competitive
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Enterprise hire, or participate in the hiring of, any Selected Firm Personnel or identify, or participate in the identification of, Selected Firm Personnel for potential hiring, whether as an employee or consultant or otherwise, or (B) Selected Firm Personnel are Solicited, hired or accepted into partnership, membership or similar status (1) by a Competitive Enterprise that you form, that bears your name, in which you are a partner, member or have similar status, or in which you possess or control greater than a de minimis equity ownership, voting or profit participation or (2) by any Competitive Enterprise where you have, or are intended to have, direct or indirect managerial or supervisory responsibility for such Selected Firm Personnel;
(iv) you fail to certify to GS Inc., in accordance with procedures established by the Committee, that you have complied, or the Committee determines that you in fact have failed to comply, with all the terms and conditions of the Plan and this Award Agreement. By accepting the delivery of Shares under this Award Agreement, you shall be deemed to have represented and certified at such time that you have complied with all the terms and conditions of the Plan and this Award Agreement;
(v) the Committee determines that you failed to meet, in any respect, any obligation you may have under any agreement between you and the Firm, or any agreement entered into in connection with your Employment with the Firm or this Award, including, without limitation, the Firms 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;
(vi) as a result of any action brought by you, it is determined that any of the terms or conditions for delivery of Shares in respect of this Award Agreement are invalid;
(vii) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Outstanding Year-End RSUs;
(viii) GS Inc. fails to maintain the required Minimum Tier 1 Capital Ratio as defined under Federal Reserve Board Regulations applicable to GS Inc. for a period of 90 consecutive business days; or
(ix) the Board of Governors of the Federal Reserve or the Federal Deposit Insurance Corporation (the FDIC) makes a written recommendation under Title II (Orderly Liquidation Authority) of the Dodd-Frank Wall Street Reform and Consumer Protection Act for the appointment of the FDIC as a receiver of GS Inc. based on a determination that GS Inc. is in default or in danger of default.
For purposes of the foregoing, the term Selected Firm Personnel means: (A) any Firm employee or consultant (1) with whom you personally worked while employed by the Firm, or (2) 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 (B) any Managing Director of the Firm.
(d) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of all of your Shares at Risk immediately shall terminate and such Shares at Risk shall be cancelled (and shall be subject to repayment in a manner similar to the provisions described in Paragraph 5) if:
(i) any event constituting Cause has occurred;
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(ii) 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 or this Award, including, without limitation, the Firms 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;
(iii) 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; or
(iv) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Shares at Risk.
(e) For the avoidance of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm shall constitute (i) failure to meet an obligation you have under an agreement referred to in Paragraphs 4(c)(v) and 4(d)(ii), regardless of whether such obligation arises under a written agreement, and/or (ii) a material violation of Firm policy constituting Cause referred to in Paragraphs 4(c)(ii) and 4(d)(i).
(f) Unless the Committee determines otherwise, without limiting any other provision in Paragraphs 4(b), 4(c) or 4(d), and except as provided in Paragraph 7, if the Committee determines that, during the Firms ____ fiscal year, you participated in the structuring or marketing of any product or service, or participated on behalf of the Firm or any of its clients in the purchase or sale of any security or other property, in any case without appropriate consideration of the risk to the Firm or the broader financial system as a whole (for example, where you have improperly analyzed such risk or where you have failed sufficiently to raise concerns about such risk) and, as a result of such action or omission, the Committee determines there has been, or reasonably could be expected to be, a material adverse impact on the Firm, your business unit or the broader financial system, your rights in respect of your Year-End RSUs awarded as part of this Award (whether or not Vested) immediately shall terminate, such Year-End RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof (and any Shares, payments under Dividend Equivalent Rights, dividends on Shares at Risk or other amounts paid or delivered to you in respect of this Award shall be subject to repayment in accordance with, or in a manner similar to the provisions described in, Paragraph 5) and any Shares at Risk shall be cancelled.
5. Repayment. The provisions of Section 2.6.3 of the Plan (which require Grantees to repay to the Firm amounts delivered to them if the Committee determines that all terms and conditions of this Award Agreement in respect of such delivery were not satisfied) shall apply to this Award which, for the avoidance of doubt, includes all amounts received under this Award, including Shares at Risk, dividends and payments under Dividend Equivalent Rights.
6. Extended Absence, Retirement, Downsizing and Approved Termination for Program Analysts.
(a) Notwithstanding any other provision of this Award Agreement, but subject to Paragraph 6(b), in the event of the termination of your Employment (determined as described in Section 1.2.19 of the Plan) by reason of Extended Absence or Retirement (as defined below), the condition set forth in Paragraph 4(a) shall be waived with respect to any Year-End RSUs 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 RSUs shall become Vested), but all other terms and conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions). Notwithstanding anything to the contrary in the Plan or otherwise, Retirement means termination of your Employment (other than for Cause) on or after the Date of
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Grant at a time when (i) (A) the sum of your age plus years of service with the Firm (as determined by the Committee in its sole discretion) equals or exceeds 60 and (B) you have completed at least 10 years of service with the Firm (as determined by the Committee in its sole discretion) or, if earlier, (ii) (A) you have attained age 50 and (B) you have completed at least five years of service with the Firm (as determined by the Committee in its sole discretion). Any termination of Employment by reason of Extended Absence or Retirement shall not affect any applicable Transfer Restrictions, and any Transfer Restrictions shall continue to apply until the Applicable Transferability Date as provided in Paragraph 3(b)(iv).
(b) Without limiting the application of Paragraphs 4(c), 4(d) and 4(f), your rights in respect of your Outstanding Year-End RSUs that become Vested in accordance with Paragraph 6(a) immediately shall terminate, such Outstanding Year-End RSUs shall cease to be Outstanding, and no Shares shall be delivered in respect thereof if, prior to the original Vesting Date with respect to such Year-End RSUs, you engage in Competition. Notwithstanding the foregoing, unless otherwise determined by the Committee in its discretion, this Paragraph 6(b) 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.
(c) Notwithstanding any other provision of this Award Agreement and subject to your executing such general waiver and release of claims and an agreement to pay any associated tax liability, both as may be prescribed by the Firm or its designee, if your Employment is terminated without Cause solely by reason of a downsizing, the condition set forth in Paragraph 4(a) shall be waived with respect to your Year-End RSUs 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 RSUs shall become Vested), but all other conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions). 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. Your termination of Employment by reason of downsizing shall not affect any applicable Transfer Restrictions, and any Transfer Restrictions shall continue to apply until the Applicable Transferability Date as provided in Paragraph 3(b)(iv).
(d) Notwithstanding any other provision of this Award Agreement, if you are classified by the Firm as a program analyst, and your Employment is terminated without Cause solely by reason of an approved termination with respect to your participation in the program prior to any Vesting Date specified on your Award Statement, the condition set forth in Paragraph 4(a) shall be waived with respect to any Year-End RSUs that were Outstanding but had not yet become Vested immediately prior to such termination of Employment (as a result of which such Year-End RSUs shall become Vested), but all other conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions). Unless otherwise determined by the Committee, for purposes of this Paragraph 6(d), an approved termination shall mean a termination of Employment from the analyst program where you: (i) successfully complete the analyst program (as determined by the Firm in its sole discretion), which shall include, but not be limited to, remaining Employed by the Firm through the analyst program completion date specified by the Firm and (ii) terminate Employment with the Firm immediately after you complete the analyst program, without any stay-on or other agreement or understanding to continue Employment with the Firm. If you agree to stay with the Firm as an employee after your analyst program ends and then later terminate Employment, you will not have an approved termination. An approved termination shall not affect any applicable Transfer Restrictions, and any Transfer Restrictions shall continue to apply until the Applicable Transferability Date as provided in Paragraph 3(b)(iv).
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7. Change in Control. Notwithstanding anything to the contrary in this Award Agreement (except Paragraph 15), in the event a Change in Control shall occur and within 18 months thereafter the Firm terminates your Employment without Cause or you terminate your Employment for Good Reason, all Shares underlying your then Outstanding Year-End RSUs, whether or not Vested, shall be delivered and any Transfer Restrictions shall cease to apply.
8. Dividend Equivalent Rights; Dividends. Each Year-End RSU shall include a Dividend Equivalent Right. Accordingly, with respect to each of your Outstanding Year-End RSUs, at or after the time of distribution of any regular cash dividend paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant, you shall be entitled to receive an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Share underlying such Outstanding Year-End RSU. Payment in respect of a Dividend Equivalent Right shall be made only with respect to Year-End RSUs that are Outstanding on the relevant record date. Each Dividend Equivalent Right shall be subject to the provisions of Section 2.8.2 of the Plan. You shall be entitled to receive on a current basis any regular cash dividend paid by GS Inc. in respect of your Shares at Risk, or, if the Shares at Risk are held in escrow, the Firm will direct the transfer/paying agent to distribute the dividends to you in respect of your Shares at Risk.
9. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan. To the extent permitted by applicable law, the Firm, in its sole discretion, may require you to provide amounts equal to all or a portion of any Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection with the grant, vesting or delivery of this Award by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award. In addition, if you are an individual with separate employment contracts (at any time during and/or after the Firms ____ fiscal year), the Firm may, in its sole discretion, require you to provide for a reserve in an amount the Firm determines is advisable or necessary in connection with any actual, anticipated or potential tax consequences related to your separate employment contracts by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award (or any other Outstanding Awards under the Plan). In no event, however, shall any choice you may have under the preceding two sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or the timing of payment of tax obligations.
(b) If you are or become a Managing Director, your rights in respect of the Year-End RSUs are conditioned on your becoming a party to any shareholders agreement to which other similarly situated employees of the Firm are a party.
(c) Your rights in respect of your Year-End RSUs are conditioned on the receipt to the full satisfaction of the Committee of any required consents (as described in Section 3.3 of the Plan) that the Committee may determine to be necessary or advisable.
(d) You understand and agree, in accordance with Section 3.3 of the Plan, by accepting this Award, you have expressly consented to all of the items listed in Section 3.3.3(d) of the Plan, which are incorporated herein by reference.
(e) You understand and agree, in accordance with Section 3.22 of the Plan, by accepting this Award you have agreed to be subject to the Firms policies in effect from time to time concerning trading in Shares and hedging or pledging Shares and equity-based compensation or other awards (including, without limitation, the Firms Policies With Respect to Transactions Involving GS Shares, Equity Awards and
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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 RSUs in accordance with such rules and procedures as may be adopted from time to time with respect to sales of such Shares (which may include, without limitation, restrictions relating to the timing of sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation of orders and volume limits determined by the Firm). In addition, you understand and agree that you shall be responsible for all brokerage costs and other fees or expenses associated with your Year-End RSU Award, including, without limitation, such brokerage costs or other fees or expenses in connection with the sale of Shares delivered to you hereunder.
(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under a separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
(g) Without limiting the application of Paragraphs 4(b), 4(c), 4(d) and 4(f), if:
(i) your Employment with the Firm terminates solely because you resigned to accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding Year-End RSUs and/or Shares at Risk would result in an actual or perceived conflict of interest (Conflicted Employment); or
(ii) following your termination of Employment other than described in Paragraph 9(g)(i), you notify the Firm that you have accepted or intend to accept Conflicted Employment at a time when you continue to hold Outstanding Year-End RSUs and/or Shares at Risk;
then, in the case of Paragraph 9(g)(i) only, the condition set forth in Paragraph 4(a) shall be waived with respect to any Year-End RSUs 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 RSUs shall become Vested) and, in the case of Paragraphs 9(g)(i) and 9(g)(ii), any Transfer Restrictions shall cease to apply, and, at the sole discretion of the Firm, you shall receive either a lump sum cash payment in respect of, or delivery of Shares underlying, your then Outstanding Vested Year-End RSUs, in each case as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
(h) In addition to and without limiting the generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person shall have any liability to you or any other person for any action taken or omitted in respect of this or any other Award.
(i) You understand and agree that, in the event of your termination of Employment while you continue to hold Outstanding Vested Year-End RSUs and/or Shares at Risk, you may be required to certify, from time to time, your compliance with all terms and conditions of the Plan and this Award Agreement. You understand and agree that (i) it is your responsibility to inform the Firm of any changes to your address to ensure timely receipt of the certification materials, (ii) you are responsible for obtaining such certification materials by contacting the Firm if you do not receive certification materials, and (iii) failure to return properly completed certification materials by the deadline specified in the certification materials will result in the forfeiture of all of your Outstanding Year-End RSUs and Shares at Risk, as applicable, in accordance with Paragraphs 4(c)(iv) and 4(d)(iii).
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10. Right of Offset. Except as provided in Paragraph 15(h), the obligation to deliver Shares or to remove the Transfer Restrictions under this Award Agreement is subject to Section 3.4 of the Plan, which provides for the Firms right to offset against such obligation any outstanding amounts you owe to the Firm and any amounts the Committee deems appropriate pursuant to any tax equalization policy or agreement.
11. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect; provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall materially adversely affect your rights and obligations under this Award Agreement without your consent; and provided further that the Committee expressly reserves its rights to amend 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.
12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or as otherwise may be provided by the Committee, the limitations on transferability set forth in Section 3.5 of the Plan shall apply to this Award. Any purported transfer or assignment in violation of the provisions of this Paragraph 13 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all recipients of Year-End RSUs may transfer some or all of their Year-End RSUs and/or Shares at Risk (which shall continue to be subject to Transfer Restrictions until the Applicable Transferability Date) through a gift for no consideration to any immediate family member (as determined pursuant to the procedures) or a trust in which the recipient and/or the recipients immediate family members in the aggregate have 100% of the beneficial interest (as determined pursuant to the procedures).
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. Compliance of Award Agreement and Plan with Section 409A. The provisions of this Paragraph 15 apply to you only if you are a United States taxpayer.
(a) References in this Award Agreement to Section 409A refer to Section 409A of the Code, including any amendments or successor provisions to that Section and any regulations and other administrative guidance thereunder, in each case as they, from time to time, may be amended or interpreted through further administrative guidance. This Award Agreement and the Plan provisions that apply to this Award are intended and shall be construed to comply with Section 409A (including the requirements applicable to, or the conditions for exemption from treatment as, a deferral of compensation or deferred compensation as those terms are defined in the regulations under Section 409A (409A deferred compensation), whether by reason of short-term deferral treatment or other exceptions or provisions). The Committee shall have full authority to give effect to this intent. To the extent necessary to give effect to this intent, in the case of any conflict or potential inconsistency between the provisions of the Plan (including, without limitation, Sections 1.3.2 and 2.1 thereof) and this Award Agreement, the provisions of this Award Agreement shall govern, and in the case of any conflict or potential inconsistency between this Paragraph 15 and the other provisions of this Award Agreement, this Paragraph 15 shall govern.
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(b) Delivery of Shares shall not be delayed beyond the date on which all applicable conditions or restrictions on delivery of Shares in respect of your Year-End RSUs required by this Agreement (including, without limitation, those specified in Paragraphs 3(b) and (c), 4(b), 6(b) and (c) (execution of waiver and release of claims and agreement to pay associated tax liability) and 9 and the consents and other items specified in Section 3.3 of the Plan) are satisfied. To the extent that any portion of this Award is intended to satisfy the requirements for short-term deferral treatment under Section 409A, delivery for such portion shall occur by the March 15 coinciding with the last day of the applicable short-term deferral period described in Reg. 1.409A-1(b)(4) in order for the delivery of Shares to be within the short-term deferral exception unless, in order to permit all applicable conditions or restrictions on delivery to be satisfied, the Committee elects, pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted in accordance with Section 409A, to delay delivery of Shares to a later date within the same calendar year or to such later date as may be permitted under Section 409A, including, without limitation, Regs. 1.409A-2(b)(7) (in conjunction with Section 3.21.3 of the Plan pertaining to Code Section 162(m)) and 1.409A-3(d).
(c) Notwithstanding the provisions of Paragraph 3(b)(iii) and Section 1.3.2(i) of the Plan, to the extent necessary to comply with Section 409A, any securities, other Awards or other property that the Firm may deliver in respect of your Year-End RSUs shall not have the effect of deferring delivery or payment, income inclusion, or a substantial risk of forfeiture, beyond the date on which such delivery, payment or inclusion would occur or such risk of forfeiture would lapse, with respect to the Shares that would otherwise have been deliverable (unless the Committee elects a later date for this purpose pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted under Section 409A, including, without limitation and to the extent applicable, the subsequent election provisions of Section 409A(a)(4)(C) of the Code and Reg. 1.409A-2(b)).
(d) Notwithstanding the timing provisions of Paragraph 3(c), the delivery of Shares referred to therein shall be made after the date of death and during the calendar year that includes the date of death (or on such later date as may be permitted under Section 409A).
(e) The timing of delivery or payment pursuant to Paragraph 7 shall occur on the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the termination of Employment occurs; provided, however, that, if you are a specified employee (as defined by the Firm in accordance with Section 409A(a)(2)(i)(B) of the Code), delivery shall occur on the earlier of the Delivery Date or (to the extent required to avoid the imposition of additional tax under Section 409A) the date that is six months after your termination of Employment (or, if the latter date is not during a Window Period, the first trading day of the next Window Period). For purposes of Paragraph 7, references in this Award Agreement to termination of Employment mean a termination of Employment from the Firm (as defined by the Firm) which is also a separation from service (as defined by the Firm in accordance with Section 409A).
(f) Notwithstanding any provision of Paragraph 8 or Section 2.8.2 of the Plan to the contrary, the Dividend Equivalent Rights with respect to each of your Outstanding Year-End RSUs shall be paid to you within the calendar year that includes the date of distribution of any corresponding regular cash dividends paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant. The payment shall be in an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Shares underlying such Outstanding Year-End RSUs.
(g) The timing of delivery or payment referred to in Paragraph 9(g) shall be the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the Committee receives satisfactory documentation relating to your Conflicted Employment, provided that such delivery or payment shall be made only at such time as, and if and to the extent that it, as reasonably determined by the Firm, would not result in the imposition of any additional tax to you under Section 409A.
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(h) Paragraph 10 and Section 3.4 of the Plan shall not apply to Awards that are 409A deferred compensation.
(i) Delivery of Shares in respect of any Award may be made, if and to the extent elected by the Committee, later than the Delivery Date or other date or period specified hereinabove (but, in the case of any Award that constitutes 409A deferred compensation, only to the extent that the later delivery is permitted under Section 409A).
(j) The Grantee understands and agrees that the Grantee is solely responsible for the payment of any taxes and penalties due pursuant to Section 409A.
16. Compliance of Award Agreement and Plan with Section 457A. To the extent the Committee or the Plans committee that has been delegated certain authority by the Committee (the SIP Committee) determines that (i) Section 457A of the Code or any guidance promulgated thereunder (Section 457A) requires that, in order to qualify for the short-term deferral exception from treatment as deferred compensation under Section 457A(d)(3)(B) of the Code, the documents governing an Award must specify that such Award will be delivered within the period set forth in Section 457A(d)(3)(B) of the Code and (ii) all or any portion of this Award is or becomes subject to Section 457A, this Award Agreement will be deemed to be amended as of the Date of Grant (as the Committee or the SIP Committee determines necessary or appropriate after consultation with counsel) to provide that delivery of Year-End RSUs will occur no later than 12 months after the end of the taxable year in which the right to delivery is first no longer subject to a substantial risk of forfeiture (as defined under Section 457A); provided, however, that no action or modification will be permitted to the extent that such action or modification would cause such Award to fail to satisfy the conditions of an applicable exception from the requirements of Section 409A or otherwise would result in an additional tax imposed under Section 409A in respect of such Award.
17. Headings. The headings in this Award Agreement are for the purpose of convenience only and are not intended to define or limit the construction of the provisions hereof.
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IN WITNESS WHEREOF, GS Inc. has caused this Award Agreement to be duly executed and delivered as of the Date of Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | ||
Title: |
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Exhibit 10.50
THE GOLDMAN SACHS AMENDED AND RESTATED
STOCK INCENTIVE PLAN
____ YEAR-END SHORT-TERM RSU AWARD
This Award Agreement sets forth the terms and conditions of the ____ Year-End award (this Award) of Short-Term RSUs (Year-End Short-Term RSUs) granted to you under The Goldman Sachs 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. IN LIGHT OF THE U.S. TAX RULES RELATING TO DEFERRED COMPENSATION IN SECTION 409A OF THE CODE, TO THE EXTENT THAT YOU ARE A UNITED STATES TAXPAYER, CERTAIN PROVISIONS OF THIS AWARD AGREEMENT AND OF THE PLAN SHALL APPLY ONLY AS PROVIDED IN PARAGRAPH 15.
2. Award. The number of Year-End Short-Term RSUs subject to this Award is set forth in the Award Statement delivered to you. An RSU is an unfunded and unsecured promise to deliver (or cause to be delivered) to you, subject to the terms and conditions of this Award Agreement, a share of Common Stock (a Share) on the Delivery Date or as otherwise provided herein. Until such delivery, you have only the rights of a general unsecured creditor, and no rights as a shareholder of GS Inc. THIS AWARD IS CONDITIONED ON YOUR EXECUTING THE RELATED SIGNATURE CARD AND RETURNING IT TO THE ADDRESS DESIGNATED ON THE SIGNATURE CARD AND/OR BY THE METHOD DESIGNATED ON THE SIGNATURE CARD BY THE DATE SPECIFIED, 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 12. BY EXECUTING THE RELATED SIGNATURE CARD (WHICH, AMONG OTHER THINGS, OPENS THE CUSTODY ACCOUNT REFERRED TO IN PARAGRAPH 3(b) 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. Vesting and Delivery.
(a) Vesting. All of your Year-End Short-Term RSUs shall be Vested on the Date of Grant. The fact that your Year-End Short-Term RSUs are Vested means only that your continued active Employment is not required in order to receive delivery of the Shares underlying your Outstanding Year-End Short-Term RSUs. However, all other terms and conditions of this Award Agreement shall continue to apply to such Vested Year-End Short-Term RSUs, and failure to meet such terms and conditions may result in the termination of this Award (as a result of which, no Shares underlying such Year-End Short-Term RSUs would be delivered).
(b) Delivery.
(i) The Delivery Date with respect to the number or percentage of your Year-End Short-Term RSUs shall be the date specified next to such number or percentage of Year-End Short-Term RSUs on your Award Statement. In accordance with Treasury Regulations section (Reg.) 1.409A-3(d), the Firm may accelerate delivery to a date that is up to 30 days before the Delivery Date specified on the Award Statement; provided, however, that in no event shall you be permitted to designate, directly or indirectly, the taxable year of the delivery.
(ii) Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 5, 7, 9, 10, 15 and 16, in accordance with Section 3.23 of the Plan, reasonably promptly (but in no case more than 30 Business Days) after each date specified as a Delivery Date (or any other date delivery of Shares is called for hereunder), Shares underlying the number or percentage of your then Outstanding Year-End Short-Term RSUs with respect to which such Delivery Date (or other date) has occurred (which number of Shares may be rounded to avoid fractional Shares) shall be delivered by book entry credit to your Custody Account or to a brokerage account, as approved or required by the Firm. Notwithstanding the foregoing, if you are or become considered by GS Inc. to be one of its covered employees within the meaning of Section 162(m) of the Code, then you shall be subject to Section 3.21.3 of the Plan, as a result of which delivery of your Shares may be delayed.
(iii) In accordance with Section 1.3.2(i) of the Plan, in the discretion of the Committee, in lieu of all or any portion of the Shares otherwise deliverable in respect of all or any portion of your Year-End Short-Term RSUs, the Firm may deliver cash, other securities, other awards under the Plan or other property, and all references in this Award Agreement to deliveries of Shares shall include such deliveries of cash, other securities, other awards under the Plan or other property.
(iv) In the discretion of the Committee, delivery of Shares may be made initially into an escrow account meeting such terms and conditions as are determined by the Firm and may be held in that escrow account until such time as the Committee has received such documentation as it may have requested or until the Committee has determined that any other conditions or restrictions on delivery of Shares required by this Award Agreement have been satisfied. By accepting your Year-End Short-Term RSUs, you have agreed on behalf of yourself (and your estate or other permitted beneficiary) that the Firm may establish and maintain an escrow account on such terms and conditions (which may include, without limitation, your (or your estate or beneficiary) executing any documents related to, and your (or your estate or beneficiary) paying for any costs associated with, such account) as the Firm may deem necessary or appropriate. Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in escrow may be accumulated and shall be paid as determined by the Firm in its sole discretion.
(v) If you are a party to the Amended and Restated Shareholders Agreement (the Shareholders Agreement), Shares delivered with respect to your Year-End Short-Term RSUs will be subject to the Shareholders Agreement, except those Shares will not be considered Covered Shares for purposes of Section 2.1(a) of the Shareholders Agreement.
(c) Death. Notwithstanding any other Paragraph of this Award Agreement (except Paragraph 15), if you die prior to the Delivery Date, the Shares underlying your then Outstanding Year-End Short-Term RSUs shall be delivered to the representative of your estate as soon as practicable after the date of death and after such documentation as may be requested by the Committee is provided to the Committee. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Outstanding Year-End Short-Term RSUs under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
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4. Termination of Year-End Short-Term RSUs and Non-Delivery of Shares.
(a) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of all of your Outstanding Year-End Short-Term RSUs immediately shall terminate, such Year-End Short-Term RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof if:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
(ii) any event that constitutes Cause has occurred;
(iii) you fail to certify to GS Inc., in accordance with procedures established by the Committee, that you have complied, or the Committee determines that you in fact have failed to comply, with all the terms and conditions of the Plan and this Award Agreement. By accepting the delivery of Shares under this Award Agreement, you shall be deemed to have represented and certified at such time that you have complied with all the terms and conditions of the Plan and this Award Agreement;
(iv) 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 or this Award, including, without limitation, the Firms 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;
(v) as a result of any action brought by you, it is determined that any of the terms or conditions for delivery of Shares in respect of this Award Agreement are invalid; or
(vi) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Outstanding Year-End Short-Term RSUs.
For the avoidance of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm shall constitute (i) failure to meet an obligation you have under an agreement referred to in Paragraph 4(a)(iv), regardless of whether such obligation arises under a written agreement, and/or (ii) a material violation of Firm policy constituting Cause referred to in Paragraph 4(a)(ii).
(b) Unless the Committee determines otherwise, without limiting any other provision in Paragraph 4(a), and except as provided in Paragraph 7, if the Committee determines that, during the Firms ____ fiscal year, you participated in the structuring or marketing of any product or service, or participated on behalf of the Firm or any of its clients in the purchase or sale of any security or other property, in any case without appropriate consideration of the risk to the Firm or the broader financial system as a whole (for example, where you have improperly analyzed such risk or where you have failed sufficiently to raise concerns about such risk) and, as a result of such action or omission, the Committee determines there has been, or reasonably could be expected to be, a material adverse impact on the Firm, your business unit or the broader financial system, your rights in respect of your Year-End Short-Term RSUs awarded as part of this Award immediately shall terminate, such Year-End Short-Term RSUs shall cease to be Outstanding and no Shares shall be delivered in respect thereof (and any Shares, payments under Dividend Equivalent Rights or other amounts paid or delivered to you in respect of this Award shall be subject to repayment in accordance with, or in a manner similar to the provisions described in, Paragraph 5).
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5. Repayment. The provisions of Section 2.6.3 of the Plan (which require Grantees to repay to the Firm amounts delivered to them if the Committee determines that all terms and conditions of this Award Agreement in respect of such delivery were not satisfied) shall apply to this Award which, for the avoidance of doubt, includes all amounts received under this Award, including payments under Dividend Equivalent Rights.
6. Termination of Employment. In the event of the termination of your Employment (determined as described in Section 1.2.19 of the Plan) for any reason, all terms and conditions of this Award Agreement shall continue to apply.
7. Change in Control. Notwithstanding anything to the contrary in this Award Agreement (except Paragraph 15), in the event a Change in Control shall occur and within 18 months thereafter the Firm terminates your Employment without Cause or you terminate your Employment for Good Reason, all Shares underlying your then Outstanding Year-End Short-Term RSUs shall be delivered.
8. Dividend Equivalent Rights. Each Year-End Short-Term RSU shall include a Dividend Equivalent Right. Accordingly, with respect to each of your Outstanding Year-End Short-Term RSUs, at or after the time of distribution of any regular cash dividend paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant, you shall be entitled to receive an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Share underlying such Outstanding Year-End Short-Term RSU. Payment in respect of a Dividend Equivalent Right shall be made only with respect to Year-End Short-Term RSUs that are Outstanding on the relevant record date. Each Dividend Equivalent Right shall be subject to the provisions of Section 2.8.2 of the Plan.
9. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares is conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan. To the extent permitted by applicable law, the Firm, in its sole discretion, may require you to provide amounts equal to all or a portion of any Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection with the grant, vesting or delivery of this Award by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award. In addition, if you are an individual with separate employment contracts (at any time during and/or after the Firms ____ fiscal year), the Firm may, in its sole discretion, require you to provide for a reserve in an amount the Firm determines is advisable or necessary in connection with any actual, anticipated or potential tax consequences related to your separate employment contracts by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award (or any other Outstanding Awards under the Plan). In no event, however, shall any choice you may have under the preceding two sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or the timing of payment of tax obligations.
(b) If you are or become a Managing Director, your rights in respect of the Year-End Short-Term RSUs are conditioned on your becoming a party to any shareholders agreement to which other similarly situated employees of the Firm are a party.
(c) Your rights in respect of your Year-End Short-Term RSUs 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.
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(d) You understand and agree, in accordance with Section 3.3 of the Plan, by accepting this Award, you have expressly consented to all of the items listed in Section 3.3.3(d) of the Plan, which are incorporated herein by reference.
(e) You understand and agree, in accordance with Section 3.22 of the Plan, by accepting this Award you have agreed to be subject to the Firms policies in effect from time to time concerning trading in Shares and hedging or pledging Shares and equity-based compensation or other awards (including, without limitation, the Firms 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 Short-Term RSUs in accordance with such rules and procedures as may be adopted from time to time with respect to sales of such Shares (which may include, without limitation, restrictions relating to the timing of sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation of orders and volume limits determined by the Firm). In addition, you understand and agree that you shall be responsible for all brokerage costs and other fees or expenses associated with your Year-End Short-Term RSU Award, including, without limitation, such brokerage costs or other fees or expenses in connection with the sale of Shares delivered to you hereunder.
(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under a separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
(g) Without limiting the application of Paragraphs 4(a) and 4(b), if:
(i) your Employment with the Firm terminates solely because you resigned to accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding Year-End Short-Term RSUs would result in an actual or perceived conflict of interest (Conflicted Employment); or
(ii) following your termination of Employment other than described in Paragraph 9(g)(i), you notify the Firm that you have accepted or intend to accept Conflicted Employment at a time when you continue to hold Outstanding Year-End Short-Term RSUs;
then, at the sole discretion of the Firm, you shall receive either a lump sum cash payment in respect of, or delivery of Shares underlying, your then Outstanding Year-End Short-Term RSUs, in each case as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
(h) In addition to and without limiting the generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person shall have any liability to you or any other person for any action taken or omitted in respect of this or any other Award.
(i) You understand and agree that, in the event of your termination of Employment while you continue to hold Outstanding Year-End Short-Term RSUs, you may be required to certify, from time to time, your compliance with all terms and conditions of the Plan and this Award Agreement. You understand and agree that (i) it is your responsibility to inform the Firm of any changes to your address to ensure timely receipt of the certification materials, (ii) you are responsible for obtaining such certification materials by contacting the Firm if you do not receive certification materials, and (iii) failure to return properly completed certification materials by the deadline specified in the certification materials will result in the forfeiture of all of your Outstanding Year-End Short-Term RSUs in accordance with Paragraph 4(a)(iii).
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10. Right of Offset. Except as provided in Paragraph 15(h), the obligation to deliver Shares under this Award Agreement is subject to Section 3.4 of the Plan, which provides for the Firms right to offset against such obligation any outstanding amounts you owe to the Firm and any amounts the Committee deems appropriate pursuant to any tax equalization policy or agreement.
11. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect; provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall materially adversely affect your rights and obligations under this Award Agreement without your consent; and provided further that the Committee expressly reserves its rights to amend 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.
12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or as otherwise may be provided by the Committee, the limitations on transferability set forth in Section 3.5 of the Plan shall apply to this Award. Any purported transfer or assignment in violation of the provisions of this Paragraph 13 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all recipients of Year-End Short-Term RSUs may transfer some or all of their Year-End Short-Term RSUs through a gift for no consideration to any immediate family member (as determined pursuant to the procedures) or a trust in which the recipient and/or the recipients immediate family members in the aggregate have 100% of the beneficial interest (as determined pursuant to the procedures).
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. Compliance of Award Agreement and Plan with Section 409A. The provisions of this Paragraph 15 apply to you only if you are a United States taxpayer.
(a) References in this Award Agreement to Section 409A refer to Section 409A of the Code, including any amendments or successor provisions to that Section and any regulations and other administrative guidance thereunder, in each case as they, from time to time, may be amended or interpreted through further administrative guidance. This Award Agreement and the Plan provisions that apply to this Award are intended and shall be construed to comply with Section 409A (including the requirements applicable to, or the conditions for exemption from treatment as, a deferral of compensation or deferred compensation as those terms are defined in the regulations under Section 409A (409A deferred compensation), whether by reason of short-term deferral treatment or other exceptions or provisions). The Committee shall have full authority to give effect to this intent. To the extent necessary to give effect to this intent, in the case of any conflict or potential inconsistency between the provisions of the Plan (including, without limitation, Sections
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1.3.2 and 2.1 thereof) and this Award Agreement, the provisions of this Award Agreement shall govern, and in the case of any conflict or potential inconsistency between this Paragraph 15 and the other provisions of this Award Agreement, this Paragraph 15 shall govern.
(b) Delivery of Shares shall not be delayed beyond the date on which all applicable conditions or restrictions on delivery of Shares in respect of your Year-End Short-Term RSUs required by this Agreement (including, without limitation, those specified in Paragraphs 3(b) and (c) and 9 and the consents and other items specified in Section 3.3 of the Plan) are satisfied. To the extent that any portion of this Award is intended to satisfy the requirements for short-term deferral treatment under Section 409A, delivery for such portion shall occur by the March 15 coinciding with the last day of the applicable short-term deferral period described in Reg. 1.409A-1(b)(4) in order for the delivery of Shares to be within the short-term deferral exception unless, in order to permit all applicable conditions or restrictions on delivery to be satisfied, the Committee elects, pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted in accordance with Section 409A, to delay delivery of Shares to a later date within the same calendar year or to such later date as may be permitted under Section 409A, including, without limitation, Regs. 1.409A-2(b)(7) (in conjunction with Section 3.21.3 of the Plan pertaining to Code Section 162(m)) and 1.409A-3(d).
(c) Notwithstanding the provisions of Paragraph 3(b)(iii) and Section 1.3.2(i) of the Plan, to the extent necessary to comply with Section 409A, any securities, other Awards or other property that the Firm may deliver in respect of your Year-End Short-Term RSUs shall not have the effect of deferring delivery or payment, income inclusion, or a substantial risk of forfeiture, beyond the date on which such delivery, payment or inclusion would occur or such risk of forfeiture would lapse, with respect to the Shares that would otherwise have been deliverable (unless the Committee elects a later date for this purpose pursuant to Reg. 1.409A-1(b)(4)(i)(D) or otherwise as may be permitted under Section 409A, including, without limitation and to the extent applicable, the subsequent election provisions of Section 409A(a)(4)(C) of the Code and Reg. 1.409A-2(b)).
(d) Notwithstanding the timing provisions of Paragraph 3(c), the delivery of Shares referred to therein shall be made after the date of death and during the calendar year that includes the date of death (or on such later date as may be permitted under Section 409A).
(e) The timing of delivery or payment pursuant to Paragraph 7 shall occur on the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the termination of Employment occurs; provided, however, that, if you are a specified employee (as defined by the Firm in accordance with Section 409A(a)(2)(i)(B) of the Code), delivery shall occur on the earlier of the Delivery Date or (to the extent required to avoid the imposition of additional tax under Section 409A) the date that is six months after your termination of Employment (or, if the latter date is not during a Window Period, the first trading day of the next Window Period). For purposes of Paragraph 7, references in this Award Agreement to termination of Employment mean a termination of Employment from the Firm (as defined by the Firm) which is also a separation from service (as defined by the Firm in accordance with Section 409A).
(f) Notwithstanding any provision of Paragraph 8 or Section 2.8.2 of the Plan to the contrary, the Dividend Equivalent Rights with respect to each of your Outstanding Year-End Short-Term RSUs shall be paid to you within the calendar year that includes the date of distribution of any corresponding regular cash dividends paid by GS Inc. in respect of a Share the record date for which occurs on or after the Date of Grant. The payment shall be in an amount (less applicable withholding) equal to such regular dividend payment as would have been made in respect of the Shares underlying such Outstanding Year-End Short-Term RSUs.
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(g) The timing of delivery or payment referred to in Paragraph 9(g) shall be the earlier of (i) the Delivery Date or (ii) a date that is within the calendar year in which the Committee receives satisfactory documentation relating to your Conflicted Employment, provided that such delivery or payment shall be made only at such time as, and if and to the extent that it, as reasonably determined by the Firm, would not result in the imposition of any additional tax to you under Section 409A.
(h) Paragraph 10 and Section 3.4 of the Plan shall not apply to Awards that are 409A deferred compensation.
(i) Delivery of Shares in respect of any Award may be made, if and to the extent elected by the Committee, later than the Delivery Date or other date or period specified hereinabove (but, in the case of any Award that constitutes 409A deferred compensation, only to the extent that the later delivery is permitted under Section 409A).
(j) The Grantee understands and agrees that the Grantee is solely responsible for the payment of any taxes and penalties due pursuant to Section 409A.
16. Compliance of Award Agreement and Plan with Section 457A. To the extent the Committee or the Plans committee that has been delegated certain authority by the Committee (the SIP Committee) determines that (i) Section 457A of the Code or any guidance promulgated thereunder (Section 457A) requires that, in order to qualify for the short-term deferral exception from treatment as deferred compensation under Section 457A(d)(3)(B) of the Code, the documents governing an Award must specify that such Award will be delivered within the period set forth in Section 457A(d)(3)(B) of the Code and (ii) all or any portion of this Award is or becomes subject to Section 457A, this Award Agreement will be deemed to be amended as of the Date of Grant (as the Committee or the SIP Committee determines necessary or appropriate after consultation with counsel) to provide that delivery of Year-End Short-Term RSUs will occur no later than 12 months after the end of the taxable year in which the right to delivery is first no longer subject to a substantial risk of forfeiture (as defined under Section 457A); provided, however, that no action or modification will be permitted to the extent that such action or modification would cause such Award to fail to satisfy the conditions of an applicable exception from the requirements of Section 409A or otherwise would result in an additional tax imposed under Section 409A in respect of such Award.
17. Headings. The headings in this Award Agreement are for the purpose of convenience only and are not intended to define or limit the construction of the provisions hereof.
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IN WITNESS WHEREOF, GS Inc. has caused this Award Agreement to be duly executed and delivered as of the Date of Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | Lloyd C. Blankfein | |
Title: | Chairman and Chief Executive Officer |
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Exhibit 10.51
THE GOLDMAN SACHS AMENDED AND RESTATED
STOCK INCENTIVE PLAN
____ YEAR-END RESTRICTED STOCK AWARD
This Award Agreement sets forth the terms and conditions of the ____ Year-End Restricted Stock Award (this Award) granted to you under The Goldman Sachs 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. This Award is made up of Restricted Shares. A Restricted Share is a share of Common Stock (a Share) delivered under the Plan that is subject to certain transfer restrictions and other terms and conditions described in this Award Agreement. The number of Restricted Shares subject to this Award is set forth in the Award Statement delivered to you and is comprised of the number of Restricted Shares designated on your Award Statement as ____ Year-End Restricted Stock and ____ Year-End Supplemental Restricted Stock. The Restricted Shares that are designated on your Award Statement as ____ Year-End Restricted Stock are referred to in this Award Agreement as Base Restricted Shares. The Restricted Shares that are designated on your Award Statement as ____ Year-End Supplemental Restricted Stock are referred to in this Award Agreement as Supplemental Restricted Shares. Unless otherwise provided, all references to Restricted Shares in this Award Agreement include both the Shares that are designated on your Award Statement as ____ Year-End Restricted Stock and the Shares that are designated on your Award Statement as ____ Year-End Supplemental Restricted Stock. (For the avoidance of doubt, this Award Agreement does not govern the terms and conditions of the Restricted Shares designated on your Award Statement as ____ Year-End Short-Term Restricted Stock, which are addressed separately in the ____ Year-End Short-Term Restricted Stock Award Agreement.) This Award is conditioned upon your granting to the Firm the full power and authority to register the Restricted Shares in its or its designees name and authorizing the Firm or its designee to sell, assign or transfer any Restricted Shares in the event of forfeiture of your Restricted Shares. Unless otherwise determined by the Firm, this Award is conditioned upon your filing an election with the Internal Revenue Service within 30 days of the grant of your Restricted Shares, electing pursuant to Section 83(b) of the Code to be taxed currently on the fair market value of the Restricted Shares on the Date of Grant. This will result in the recognition of taxable income on the Date of Grant equal to such fair market value (but will not affect the Vesting of your Restricted Shares or the removal of the Transfer Restrictions). THIS AWARD IS CONDITIONED ON YOUR EXECUTING THE RELATED SIGNATURE CARD AND RETURNING IT TO THE ADDRESS DESIGNATED ON THE SIGNATURE CARD AND/OR BY THE METHOD DESIGNATED ON THE SIGNATURE CARD BY THE DATE SPECIFIED, 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 12. BY EXECUTING THE RELATED SIGNATURE CARD (WHICH, AMONG OTHER THINGS, OPENS THE CUSTODY ACCOUNT REFERRED TO IN PARAGRAPH 3(b) 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. Certain Material Terms of Restricted Shares.
(a) Vesting. All of your Supplemental Restricted Shares shall be Vested on the Date of Grant. Except as provided in this Paragraph 3 and in Paragraphs 2, 4, 6, 7, 9 and 10, on each Vesting Date you shall become Vested in the number or percentage of Base Restricted Shares specified next to such Vesting Date on the Award Statement (which may be rounded to avoid fractional Shares). When a Restricted Share becomes Vested, it means only that your continued active Employment is not required in order for your Restricted Shares that become Vested to become fully transferable without risk of forfeiture. However, all other terms and conditions of this Award Agreement (including the Transfer Restrictions described in Paragraph 3(c)) shall continue to apply to such Restricted Shares, and failure to meet such terms and conditions may result in the forfeiture of all of your rights in respect of the Restricted Shares and their return to GS Inc. and the cancellation of this Award.
(b) Date of Grant. The date on which your Restricted Shares will be granted, subject to the conditions of this Award Agreement, is set forth on your Award Statement. Except as provided in this Paragraph 3 and in Paragraph 2, the Restricted Shares shall be delivered to an escrow, custody, brokerage or similar account, as approved or required by the Firm, and, except as provided in Paragraphs 3(d), 7 and 9(g), shall be subject to the Transfer Restrictions described in Paragraph 3(c).
(c) Transfer Restrictions; Escrow.
(i) Except as provided in Paragraphs 3(d), 7, and 9(g), Restricted Shares shall not be permitted to be sold, exchanged, transferred, assigned, pledged, hypothecated, fractionalized, hedged or otherwise disposed of (including through the use of any cash-settled instrument), whether voluntarily or involuntarily by you (such restrictions collectively referred to herein as the Transfer Restrictions) until the date specified as the Transferability Date next to such number or percentage of Restricted Shares on your Award Statement (each such date, a Transferability Date). Any purported sale, exchange, transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition in violation of the Transfer Restrictions shall be void. If and to the extent Restricted Shares are certificated, the Certificates representing such Restricted Shares are subject to the restrictions in this Paragraph 3(c)(i), and GS Inc. shall advise its transfer agent to place a stop order against such Restricted Shares. Within 30 Business Days after the Transferability Date (or any other date described herein on which the Transfer Restrictions are removed), GS Inc. shall take, or shall cause to be taken, such steps as may be necessary to remove the Transfer Restrictions in respect of any of such Restricted Shares that have not been previously forfeited.
(ii) In the discretion of the Committee, delivery of the Restricted Shares may be made directly into an escrow account meeting such terms and conditions as are determined by the Firm, provided that any other conditions or restrictions on delivery of Shares required by this Award Agreement have been satisfied. By accepting your Restricted Shares, you have agreed on behalf of yourself (and your estate or other permitted beneficiary) that the Firm may establish and maintain an escrow account for your benefit on such terms and conditions as the Firm may deem necessary or appropriate (which may include, without limitation, your (or your estate or other permitted beneficiary) executing any documents related to, and your (or your estate or other permitted beneficiary) paying for any costs associated with, such account). Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in escrow may be accumulated and shall be paid as determined by the Firm in its sole discretion.
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(iii) If you are a party to the Amended and Restated Shareholders Agreement (the Shareholders Agreement), your Base Restricted Shares will be considered Covered Shares for purposes of Section 2.1(a) of the Shareholders Agreement as described in Appendix A hereto. Your Supplemental Restricted Shares will not be considered Covered Shares for purposes of Section 2.1(a) of the Shareholders Agreement and will not be subject to the retention requirement under the Shareholders Agreement.
(d) Death. Notwithstanding any other Paragraph of this Award Agreement, if you die prior to the Transferability Date with respect to your Restricted Shares, as soon as practicable after the date of death and after such documentation as may be requested by the Committee is provided to the Committee, the Transfer Restrictions then applicable to such Restricted Shares shall be removed. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Restricted Shares under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
4. Termination of Employment; Forfeiture of Restricted Shares.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 3(d), 6, 7, and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, your rights in respect of your Restricted Shares that were Outstanding but that had not yet become Vested prior to your termination of Employment immediately shall be forfeited, such Restricted Shares shall immediately be returned to GS Inc. and such portion of the Award immediately shall be cancelled. Unless the Committee determines otherwise, and except as provided in Paragraphs 3(d), 7 and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, the Transfer Restrictions shall continue to apply to your Restricted Shares that were Outstanding and had become Vested prior to your termination of Employment until the Transferability Date in accordance with Paragraph 3(c).
(b) Without limiting the application of Paragraphs 4(c), 4(d) and 4(f), your rights in respect of the Supplemental Restricted Shares corresponding to a Transferability Date immediately shall be forfeited, such Supplemental Restricted Shares immediately shall be returned to GS Inc. and such portion of the Award immediately shall be cancelled if you engage in Competition (as defined below) prior to the earlier of (i) the December 31 that immediately precedes such Transferability Date or (ii) the date on which the Transfer Restrictions and risks of forfeiture with respect to your Supplemental Restricted Shares are removed following a Change in Control in accordance with Paragraph 7 hereof. For purposes of this Award Agreement, Competition means that 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 4(b) will not apply if your Employment is terminated without Cause solely by reason of a downsizing, or 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 or be solely by reason of a downsizing. Whether or not your Employment is terminated solely by reason of a downsizing shall be determined by the Firm in its sole discretion.
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(c) Unless the Committee determines otherwise, and except as provided in Paragraph 7, if:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
(ii) (A) you, in any manner, directly or indirectly, (1) Solicit any Client to transact business with a Competitive Enterprise or to reduce or refrain from doing any business with the Firm, (2) interfere with or damage (or attempt to interfere with or damage) any relationship between the Firm and any Client, (3) Solicit any person who is an employee of the Firm to resign from the Firm or to apply for or accept employment with any Competitive Enterprise or (4) on behalf of yourself or any person or Competitive Enterprise hire, or participate in the hiring of, any Selected Firm Personnel or identify, or participate in the identification of, Selected Firm Personnel for potential hiring, whether as an employee or consultant or otherwise, or (B) Selected Firm Personnel are Solicited, hired or accepted into partnership, membership or similar status (1) by a Competitive Enterprise that you form, that bears your name, in which you are a partner, member or have similar status, or in which you possess or control greater than a de minimis equity ownership, voting or profit participation or (2) by any Competitive Enterprise where you have, or are intended to have, direct or indirect managerial or supervisory responsibility for such Selected Firm Personnel;
(iii) as a result of any action brought by you, it is determined that any of the terms or conditions for the expiration of the Transfer Restrictions with respect to this Award are invalid;
(iv) [GS Inc. fails to maintain the required Minimum Tier 1 Capital Ratio as defined under Federal Reserve Board Regulations applicable to GS Inc. for a period of 90 consecutive business days; or]
(v) [the Board of Governors of the Federal Reserve or the Federal Deposit Insurance Corporation (the FDIC) makes a written recommendation under Title II (Orderly Liquidation Authority) of the Dodd-Frank Wall Street Reform and Consumer Protection Act for the appointment of the FDIC as a receiver of GS Inc. based on a determination that GS Inc. is in default or in danger of default,]
your rights in respect of the following Restricted Shares (whether or not Vested) immediately shall be forfeited, such Shares immediately shall be returned to GS Inc. and such portion of the Award immediately shall be cancelled: (x) all of the gross Restricted Shares granted to you if any of the events described in this Paragraph 4(c) (the Events) occurs prior to the January ____ Date (as defined below); (y) two-thirds of the gross Restricted Shares granted to you if any of the Events occurs on or after the January ____ Date but prior to the January ____ Date (as defined below); and (z) one-third of the gross Restricted Shares granted to you if any of the Events occurs on or after the January ____ Date but prior to the January ____ Date (as defined below). The January ____ Date is the first trading day in a Window Period in January ____ (or if there is no trading day in a Window Period that occurs in January ____ on or before January 29, another date in January that is selected by the Committee or the committee that is delegated certain authority by the Committee) and includes the 30 Business Days after such date. The January ____ Date is the first trading day in a Window Period in January ____ (or if there is no trading day in a Window Period that occurs in January ____ on or before January 29, another date in January that is selected by the Committee or the committee that is delegated certain authority by the Committee) and includes the 30 Business Days after such date. The January ____ Date is the first trading day in a Window Period in January ____ (or if there is no trading day in a Window Period that occurs in January
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____ on or before January 29, another date in January that is selected by the Committee or the committee that is delegated certain authority by the Committee) and includes the 30 Business Days after such date. Such forfeiture will apply first to any Base Restricted Shares that are not Vested, then to any Vested Base Restricted Shares, and then to any Supplemental Restricted Shares.
For purposes of the foregoing, the term Selected Firm Personnel means: (A) any Firm employee or consultant (1) with whom you personally worked while employed by the Firm, or (2) 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 (B) any Managing Director of the Firm.
(d) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of Outstanding Restricted Shares (whether or not Vested) immediately shall be forfeited, and such Shares immediately shall be returned to GS Inc., if, before the Transferability Date for such Restricted Shares:
(i) any event that constitutes Cause has occurred;
(ii) 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 or this Award, including, without limitation, the Firms 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;
(iii) 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. On each Transferability Date, you shall be deemed to have represented and certified that you have complied with all the terms and conditions of the Plan and this Award Agreement; or
(iv) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Outstanding Restricted Shares.
(e) For the avoidance of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm shall constitute (i) failure to meet an obligation you have under an agreement referred to in Paragraph 4(d)(ii), regardless of whether such obligation arises under a written agreement, and/or (ii) a material violation of Firm policy constituting Cause referred to in Paragraph 4(d)(i).
(f) Unless the Committee determines otherwise, without limiting any other provision in Paragraphs 4(b), 4(c) or 4(d), and except as provided in Paragraph 7, if the Committee determines that, during the Firms ____ fiscal year, you participated in the structuring or marketing of any product or service, or participated on behalf of the Firm or any of its clients in the purchase or sale of any security or other property, in any case without appropriate consideration of the risk to the Firm or the broader financial system as a whole (for example, where you have improperly analyzed such risk or where you have failed sufficiently to raise concerns about such risk) and, as a result of such action or omission, the Committee determines there has been, or reasonably could be expected to be, a material adverse impact on the Firm, your business unit or the broader financial system, your rights in respect of your Outstanding Restricted Shares awarded as part of this Award (whether or not Vested) immediately shall be forfeited,
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such Shares immediately shall be returned to GS Inc. and this Award shall be cancelled (and any dividends or other amounts paid or delivered to you in respect of this Award shall be subject to repayment in accordance with, or in a manner similar to the provisions described in, Paragraph 5).
5. Repayment and Forfeiture.
(a) The provisions of Section 2.5.2 of the Plan (which require Grantees to repay to the Firm the value of Restricted Shares, without reduction for related withholding tax, if the Committee determines that all terms and conditions of this Award Agreement were not satisfied) shall apply to this Award, (and, for the avoidance of doubt, shall include repayment of all dividends received on Restricted Shares), except that if the condition that was not satisfied would have resulted in the Transfer Restrictions not being removed, then the Fair Market Value of the Shares shall be determined as of the Transferability Date (or any earlier date that the Transfer Restrictions were removed).
(b) If and to the extent you forfeit any Restricted Shares hereunder or are required to repay any amount in respect of a number of Restricted Shares pursuant to Paragraph 5(a), you also will be required to pay to the Firm, immediately upon demand therefor, an amount equal to the Fair Market Value (determined as of the Date of Grant) of the number of Shares that were used to satisfy tax withholding for such Restricted Shares that are forfeited or subject to repayment pursuant to Paragraph 5(a). Such repayment amount for Restricted Shares applied to tax withholding will be determined by multiplying the number of Restricted Shares that were used to satisfy withholding taxes related to this Award (the Tax Withholding Shares) by a fraction, the numerator of which is the number of Restricted Shares you forfeited (or with respect to which repayment is required) and the denominator of which is the number of Restricted Shares that comprised the Award (reduced by the Tax Withholding Shares).
6. Extended Absence, Retirement and Downsizing.
(a) Notwithstanding any other provision of this Award Agreement, but subject to Paragraph 6(b), in the event of the termination of your Employment (determined as described in Section 1.2.19 of the Plan) by reason of Extended Absence or Retirement (as defined below), the condition set forth in Paragraph 4(a) shall be waived with respect to any Restricted Shares that were Outstanding but that had not yet become Vested immediately prior to such termination of Employment (as a result of which such Restricted Shares shall become Vested), but all other terms and conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions). Notwithstanding anything to the contrary in the Plan or otherwise, Retirement means termination of your Employment (other than for Cause) on or after the Date of Grant at a time when (i) (A) the sum of your age plus years of service with the Firm (as determined by the Committee in its sole discretion) equals or exceeds 60 and (B) you have completed at least 10 years of service with the Firm (as determined by the Committee in its sole discretion) or, if earlier, (ii) (A) you have attained age 50 and (B) you have completed at least five years of service with the Firm (as determined by the Committee in its sole discretion). Any termination of Employment by reason of Extended Absence or Retirement shall not affect any applicable Transfer Restrictions, and any Transfer Restrictions shall continue to apply until the Transferability Date as provided in Paragraph 3(c).
(b) Without limiting the application of Paragraphs 4(c), 4(d) and 4(f), your rights in respect of your Outstanding Restricted Shares that become Vested in accordance with Paragraph 6(a) immediately shall be forfeited and such Restricted Shares immediately shall be returned to GS Inc. if, prior to the original Vesting Date with respect to such Restricted Shares, you engage in Competition. Notwithstanding the foregoing, unless otherwise determined by the Committee in its discretion, this Paragraph 6(b) will not apply to your Outstanding Restricted Shares if your termination of Employment
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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.
(c) Notwithstanding any other provision of this Award Agreement and subject to your executing such general waiver and release of claims and an agreement to pay any associated tax liability, both as may be prescribed by the Firm or its designee, if your Employment is terminated without Cause solely by reason of a downsizing, the condition set forth in Paragraph 4(a) shall be waived with respect to your Restricted Shares that were Outstanding but that had not yet become Vested immediately prior to such termination of Employment (as a result of which such Restricted Shares shall become Vested), but all other conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions). 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. Your termination of Employment by reason of downsizing shall not affect any applicable Transfer Restrictions, and any Transfer Restrictions shall continue to apply until the Transferability Date as provided in Paragraph 3(c).
7. Change in Control. Notwithstanding anything to the contrary in this Award Agreement, in the event a Change in Control shall occur and within 18 months thereafter the Firm terminates your Employment without Cause or you terminate your Employment for Good Reason, all of the Transfer Restrictions and risks of forfeiture with respect to your Restricted Shares (whether or not Vested) shall be removed.
8. Dividends. You shall be entitled to receive on a current basis any regular cash dividend paid by GS Inc. in respect of your Restricted Shares, or, if the Restricted Shares are held in escrow, the Firm will direct the transfer/paying agent to distribute the dividends to you in respect of your Restricted Shares.
9. Certain Additional Terms, Conditions and Agreements.
(a) The Vesting and delivery of Shares and the removal of the Transfer Restrictions are conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan. To the extent permitted by applicable law, the Firm, in its sole discretion, may require you to provide amounts equal to all or a portion of any Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection with the grant, vesting or delivery of this Award by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise), (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award or (iii) in Shares delivered to you pursuant to this Award. In addition, if you are an individual with separate employment contracts (at any time during and/or after the Firms ____ fiscal year), the Firm may, in its sole discretion, require you to provide for a reserve in an amount the Firm determines is advisable or necessary in connection with any actual, anticipated or potential tax consequences related to your separate employment contracts by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award (or any other Outstanding Awards under the Plan). In no event, however, shall any choice you may have under the preceding two sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or the timing of payment of tax obligations.
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(b) If you are or become a Managing Director, your rights in respect of the Restricted Shares 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 this Award are conditioned on the receipt to the full satisfaction of the Committee of any required consents (as described in Section 3.3 of the Plan) that the Committee may determine to be necessary or advisable.
(d) You understand and agree, in accordance with Section 3.3 of the Plan, by accepting this Award you have expressly consented to all of the items listed in Section 3.3.3(d) of the Plan, which are incorporated herein by reference.
(e) You understand and agree, in accordance with Section 3.22 of the Plan, by accepting this Award you have agreed to be subject to the Firms policies in effect from time to time concerning trading in Shares and hedging or pledging Shares and equity-based compensation or other awards (including, without limitation, the Firms 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 this Award in accordance with such rules and procedures as may be adopted from time to time with respect to sales of such Shares (which may include, without limitation, restrictions relating to the timing of sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation of orders and volume limits determined by the Firm). In addition, you understand and agree that you shall be responsible for all brokerage costs and other fees or expenses associated with this Award, including, without limitation, such brokerage costs or other fees or expenses in connection with the sale of Shares delivered to you hereunder.
(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under a separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
(g) Without limiting the application of Paragraphs 4(b), 4(c), 4(d) and 4(f), if:
(i) your Employment with the Firm terminates solely because you resigned to accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency, or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding Restricted Shares would result in an actual or perceived conflict of interest (Conflicted Employment); or
(ii) following your termination of Employment other than described in Paragraph 9(g)(i), you notify the Firm that you have accepted or intend to accept Conflicted Employment at a time when you continue to hold Outstanding Restricted Shares;
then, in the case of Paragraph 9(g)(i) only, the condition set forth in Paragraph 4(a) shall be waived with respect to any Restricted Shares you then hold that had not yet become Vested immediately prior to such termination of Employment (as a result of which such Restricted Shares shall become Vested) and, in the cases of Paragraphs 9(g)(i) and 9(g)(ii), any Transfer Restrictions shall be removed, in each case as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
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(h) In addition to and without limiting the generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person shall have any liability to you or any other person for any action taken or omitted in respect of this or any other Award.
(i) You understand and agree, by accepting this Award, that Restricted Shares hereby are pledged to the Firm to secure its right to such Restricted Shares in the event you forfeit any such Restricted Shares pursuant to the terms of the Plan or this Award Agreement. This Award, if held in escrow, will not be delivered to you but will be held by an escrow agent for your benefit. If an escrow agent is used, such escrow agent will also hold the Restricted Shares for the benefit of the Firm for the purpose of perfecting its security interest.
(j) You understand and agree that, in the event of your termination of Employment while you continue to hold Outstanding Restricted Shares, you may be required to certify, from time to time, your compliance with all terms and conditions of the Plan and this Award Agreement. You understand and agree that (i) it is your responsibility to inform the Firm of any changes to your address to ensure timely receipt of the certification materials, (ii) you are responsible for obtaining such certification materials by contacting the Firm if you do not receive certification materials, and (iii) failure to return properly completed certification materials by the deadline specified in the certification materials will result in the forfeiture of all of your Outstanding Restricted Shares in accordance with Paragraph 4(d)(iii).
10. Right of Offset. The Firm may exercise its right of offset under Section 3.4 of the Plan by conditioning the removal of the Transfer Restrictions on your satisfaction of your obligations to the Firm in a manner deemed appropriate by the Committee, including by the application of some or all of your Restricted Shares.
11. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect; provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall materially adversely affect your rights and obligations under this Award Agreement without your consent; and provided further that the Committee expressly reserves its rights to amend 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.
12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or as otherwise may be provided by the Committee, and without limiting Paragraph 3(c) hereof, 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 13 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all recipients of Restricted
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Shares may transfer some or all of their Restricted Shares (which shall continue to be subject to the Transfer Restrictions until the Transferability Date) through a gift for no consideration to any immediate family member (as determined pursuant to the procedures) or a trust in which the recipient and/or the recipients immediate family members in the aggregate have 100% of the beneficial interest (as determined pursuant to the procedures).
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 Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | ||
Title: |
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Appendix A
Treatment of Restricted Shares under the Shareholders Agreement. Capitalized terms used in this Appendix A that are not defined in this Appendix A, the Award Agreement or the Plan have the meanings as used or defined in the Shareholders Agreement.
With respect to all Base Restricted Shares that are awarded under the ____ Year-End Restricted Stock Award, an event triggering the recalculation of the Covered Persons Covered Shares shall be deemed to occur on each of the January ____ Date, the January ____ Date, and the January ____ Date (each such date being referred to as a Trigger Date).
As of each such Trigger Date, such Covered Persons Covered Shares shall be increased by:
| the gross number of Base Restricted Shares that cease to be forfeitable on such Trigger Date pursuant to Paragraph 4(c) (determined before any deductions, including any deductions for withholding taxes, fees or commissions), minus |
| such gross number multiplied by the Specified Tax Rate that would apply if the Covered Person had received, on or around the Trigger Date, a delivery of Common Stock underlying Year-End RSUs instead of receiving a grant of Restricted Shares. |
Until a Trigger Date, the Covered Person shall not be deemed to be the Sole Beneficial Owner of the Restricted Shares (including for these purposes Supplemental Restricted Shares) that cease to be subject to forfeiture on such Trigger Date under Paragraph 4(c) (and therefore until such Trigger Date such Shares shall not be counted toward the satisfaction of the Transfer Restrictions (as defined in the Shareholders Agreement)).
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Exhibit 10.52
THE GOLDMAN SACHS AMENDED AND RESTATED
STOCK INCENTIVE PLAN
____ YEAR-END RESTRICTED STOCK AWARD
This Award Agreement sets forth the terms and conditions of the ____ Year-End Restricted Stock Award (this Award) granted to you under The Goldman Sachs 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. This Award is made up of the number of Restricted Shares (Restricted Shares) specified on your Award Statement. A Restricted Share is a share of Common Stock (a Share) delivered under the Plan that is subject to certain transfer restrictions and other terms and conditions described in this Award Agreement. This Award is conditioned upon your granting to the Firm the full power and authority to register the Restricted Shares in its or its designees name and authorizing the Firm or its designee to sell, assign or transfer any Restricted Shares in the event of forfeiture of your Restricted Shares. Unless otherwise determined by the Firm, this Award is conditioned upon your filing an election with the Internal Revenue Service within 30 days of the grant of your Restricted Shares, electing pursuant to Section 83(b) of the Code to be taxed currently on the fair market value of the Restricted Shares on the Date of Grant. This will result in the recognition of taxable income on the Date of Grant equal to such fair market value (but will not affect the Vesting of your Restricted Shares or the removal of the Transfer Restrictions). THIS AWARD IS CONDITIONED ON YOUR EXECUTING THE RELATED SIGNATURE CARD AND RETURNING IT TO THE ADDRESS DESIGNATED ON THE SIGNATURE CARD AND/OR BY THE METHOD DESIGNATED ON THE SIGNATURE CARD BY THE DATE SPECIFIED, 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 12. BY EXECUTING THE RELATED SIGNATURE CARD (WHICH, AMONG OTHER THINGS, OPENS THE CUSTODY ACCOUNT REFERRED TO IN PARAGRAPH 3(b) 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. Certain Material Terms of Restricted Shares.
(a) Vesting. All of your Restricted Shares shall be Vested on the Date of Grant. When a Restricted Share is Vested, it means only that your continued active Employment is not required in order for your Restricted Shares to become fully transferable without risk of forfeiture. However, all other terms and conditions of this Award Agreement (including the Transfer Restrictions described in Paragraph 3(c)) shall continue to apply to such Restricted Shares, and failure to meet such terms and conditions may result in the forfeiture of all of your rights in respect of the Restricted Shares and their return to GS Inc. and the cancellation of this Award.
(b) Date of Grant. The date on which your Restricted Shares will be granted, subject to the conditions of this Award Agreement, is set forth on your Award Statement. Except as provided in this Paragraph 3 and in Paragraph 2, the Restricted Shares shall be delivered to an escrow, custody, brokerage or similar account, as approved or required by the Firm, and, except as provided in Paragraphs 3(d), 7 and 9(g), shall be subject to the Transfer Restrictions described in Paragraph 3(c).
(c) Transfer Restrictions; Escrow.
(i) Except as provided in Paragraphs 3(d), 7, and 9(g), Restricted Shares shall not be permitted to be sold, exchanged, transferred, assigned, pledged, hypothecated, fractionalized, hedged or otherwise disposed of (including through the use of any cash-settled instrument), whether voluntarily or involuntarily by you (such restrictions collectively referred to herein as the Transfer Restrictions) until the date specified as the Transferability Date next to such number or percentage of Restricted Shares on your Award Statement (each such date, a Transferability Date). Any purported sale, exchange, transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition in violation of the Transfer Restrictions shall be void. If and to the extent Restricted Shares are certificated, the Certificates representing such Restricted Shares are subject to the restrictions in this Paragraph 3(c)(i), and GS Inc. shall advise its transfer agent to place a stop order against such Restricted Shares. Within 30 Business Days after the Transferability Date (or any other date described herein on which the Transfer Restrictions are removed), GS Inc. shall take, or shall cause to be taken, such steps as may be necessary to remove the Transfer Restrictions in respect of any of such Restricted Shares that have not been previously forfeited.
(ii) In the discretion of the Committee, delivery of the Restricted Shares may be made directly into an escrow account meeting such terms and conditions as are determined by the Firm, provided that any other conditions or restrictions on delivery of Shares required by this Award Agreement have been satisfied. By accepting your Restricted Shares, you have agreed on behalf of yourself (and your estate or other permitted beneficiary) that the Firm may establish and maintain an escrow account for your benefit on such terms and conditions as the Firm may deem necessary or appropriate (which may include, without limitation, your (or your estate or other permitted beneficiary) executing any documents related to, and your (or your estate or other permitted beneficiary) paying for any costs associated with, such account). Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in escrow may be accumulated and shall be paid as determined by the Firm in its sole discretion.
(iii) If you are a party to the Amended and Restated Shareholders Agreement (the Shareholders Agreement), your Restricted Shares will be considered Covered Shares for purposes of Section 2.1(a) of the Shareholders Agreement as described in Appendix A hereto.
(d) Death. Notwithstanding any other Paragraph of this Award Agreement, if you die prior to the Transferability Date with respect to your Restricted Shares, as soon as practicable after the date of death and after such documentation as may be requested by the Committee is provided to the Committee, the Transfer Restrictions then applicable to such Restricted Shares shall be removed. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Restricted Shares under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
4. Termination of Employment; Forfeiture of Restricted Shares.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 3(d), 7 and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, the Transfer Restrictions shall continue to apply to your Restricted Shares that were Outstanding prior to your termination of Employment until the Transferability Date in accordance with Paragraph 3(c).
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(b) Without limiting the application of Paragraphs 4(c), 4(d) and 4(f), and subject to Paragraph 6(b), your rights in respect of the following Restricted Shares immediately shall be forfeited, such Restricted Shares immediately shall be returned to GS Inc. and such portion of the Award immediately shall be cancelled if you engage in Competition (as defined below):
(i) all of the gross Restricted Shares granted to you if you engage in Competition prior to the earlier of (A) December 31, ____ and (B) the date on which the Transfer Restrictions and risks of forfeiture with respect to your Restricted Shares are removed following a Change in Control in accordance with Paragraph 7 hereof;
(ii) two-thirds of the gross Restricted Shares granted to you if you engage in Competition on or after December 31, ____ but prior to the earlier of (A) December 31, ____ and (B) the date on which the Transfer Restrictions and risks of forfeiture with respect to your Restricted Shares are removed following a Change in Control in accordance with Paragraph 7 hereof; and
(iii) one-third of the gross Restricted Shares granted to you if you engage in Competition on or after December 31, ____ but prior to the earlier of (A) December 31, ____ and (B) the date on which the Transfer Restrictions and risks of forfeiture with respect to your Restricted Shares are removed following a Change in Control in accordance with Paragraph 7 hereof.
For purposes of this Award Agreement, Competition means that you (i) form, or acquire a 5% or greater equity ownership, voting or profit participation interest in, any Competitive Enterprise, or (ii) associate in any capacity (including, but not limited to, association as an officer, employee, partner, director, consultant, agent or advisor) with any Competitive Enterprise.
(c) Unless the Committee determines otherwise, and except as provided in Paragraph 7, if:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
(ii) (A) you, in any manner, directly or indirectly, (1) Solicit any Client to transact business with a Competitive Enterprise or to reduce or refrain from doing any business with the Firm, (2) interfere with or damage (or attempt to interfere with or damage) any relationship between the Firm and any Client, (3) Solicit any person who is an employee of the Firm to resign from the Firm or to apply for or accept employment with any Competitive Enterprise or (4) on behalf of yourself or any person or Competitive Enterprise hire, or participate in the hiring of, any Selected Firm Personnel or identify, or participate in the identification of, Selected Firm Personnel for potential hiring, whether as an employee or consultant or otherwise, or (B) Selected Firm Personnel are Solicited, hired or accepted into partnership, membership or similar status (1) by a Competitive Enterprise that you form, that bears your name, in which you are a partner, member or have similar status, or in which you possess or control greater than a de minimis equity ownership, voting or profit participation or (2) by any Competitive Enterprise where you have, or are intended to have, direct or indirect managerial or supervisory responsibility for such Selected Firm Personnel;
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(iii) as a result of any action brought by you, it is determined that any of the terms or conditions for the expiration of the Transfer Restrictions with respect to this Award are invalid;
(iv) GS Inc. fails to maintain the required Minimum Tier 1 Capital Ratio as defined under Federal Reserve Board Regulations applicable to GS Inc. for a period of 90 consecutive business days; or
(v) the Board of Governors of the Federal Reserve or the Federal Deposit Insurance Corporation (the FDIC) makes a written recommendation under Title II (Orderly Liquidation Authority) of the Dodd-Frank Wall Street Reform and Consumer Protection Act for the appointment of the FDIC as a receiver of GS Inc. based on a determination that GS Inc. is in default or in danger of default,
your rights in respect of the following Restricted Shares immediately shall be forfeited, such Shares immediately shall be returned to GS Inc. and such portion of the Award immediately shall be cancelled: (x) all of the gross Restricted Shares granted to you if any of the events described in this Paragraph 4(c) (the Events) occurs prior to the January ____ Date (as defined below); (y) two-thirds of the gross Restricted Shares granted to you if any of the Events occurs on or after the January ____ Date but prior to the January ____ Date (as defined below); and (z) one-third of the gross Restricted Shares granted to you if any of the Events occurs on or after the January ____ Date but prior to the January ____ Date (as defined below). The January ____ Date is the first trading day in a Window Period in January ____ (or if there is no trading day in a Window Period that occurs in January ____ on or before January 29, another date in January that is selected by the Committee or the committee that is delegated certain authority by the Committee) and includes the 30 Business Days after such date. The January ____ Date is the first trading day in a Window Period in January ____ (or if there is no trading day in a Window Period that occurs in January ____ on or before January 29, another date in January that is selected by the Committee or the committee that is delegated certain authority by the Committee) and includes the 30 Business Days after such date. The January ____ Date is the first trading day in a Window Period in January ____ (or if there is no trading day in a Window Period that occurs in January ____ on or before January 29, another date in January that is selected by the Committee or the committee that is delegated certain authority by the Committee) and includes the 30 Business Days after such date. Shares may be rounded to avoid fractional Shares.
For purposes of the foregoing, the term Selected Firm Personnel means: (A) any Firm employee or consultant (1) with whom you personally worked while employed by the Firm, or (2) 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 (B) any Managing Director of the Firm.
(d) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of Outstanding Restricted Shares immediately shall be forfeited, and such Shares immediately shall be returned to GS Inc., if, before the Transferability Date for such Restricted Shares:
(i) any event that constitutes Cause has occurred;
(ii) 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 or this Award, including, without limitation, the Firms 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;
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(iii) 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. On the Transferability Date, you shall be deemed to have represented and certified that you have complied with all the terms and conditions of the Plan and this Award Agreement; or
(iv) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Outstanding Restricted Shares.
(e) For the avoidance of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm shall constitute (i) failure to meet an obligation you have under an agreement referred to in Paragraph 4(d)(ii), regardless of whether such obligation arises under a written agreement, and/or (ii) a material violation of Firm policy constituting Cause referred to in Paragraph 4(d)(i).
(f) Unless the Committee determines otherwise, without limiting any other provision in Paragraphs 4(c) or 4(d), and except as provided in Paragraph 7, if the Committee determines that, during the Firms ____ fiscal year, you participated in the structuring or marketing of any product or service, or participated on behalf of the Firm or any of its clients in the purchase or sale of any security or other property, in any case without appropriate consideration of the risk to the Firm or the broader financial system as a whole (for example, where you have improperly analyzed such risk or where you have failed sufficiently to raise concerns about such risk) and, as a result of such action or omission, the Committee determines there has been, or reasonably could be expected to be, a material adverse impact on the Firm, your business unit or the broader financial system, your rights in respect of your Outstanding Restricted Shares awarded as part of this Award immediately shall be forfeited, such Shares immediately shall be returned to GS Inc. and this Award shall be cancelled (and any dividends or other amounts paid or delivered to you in respect of this Award shall be subject to repayment in accordance with, or in a manner similar to the provisions described in, Paragraph 5).
5. Repayment and Forfeiture.
(a) The provisions of Section 2.5.2 of the Plan (which require Grantees to repay to the Firm the value of Restricted Shares, without reduction for related withholding tax, if the Committee determines that all terms and conditions of this Award Agreement were not satisfied) shall apply to this Award (and, for the avoidance of doubt, shall include repayment of all dividends received on Restricted Shares), except that if the condition that was not satisfied would have resulted in the Transfer Restrictions not being removed, then the Fair Market Value of the Shares shall be determined as of the Transferability Date (or any earlier date that the Transfer Restrictions were removed).
(b) If and to the extent you forfeit any Restricted Shares hereunder or are required to repay any amount in respect of a number of Restricted Shares pursuant to Paragraph 5(a), you also will be required to pay to the Firm, immediately upon demand therefor, an amount equal to the Fair Market Value (determined as of the Date of Grant) of the number of Shares that were used to satisfy tax withholding for such Restricted Shares that are forfeited or subject to repayment pursuant to Paragraph 5(a). Such repayment amount for Restricted Shares applied to tax withholding will be determined by
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multiplying the number of Restricted Shares that were used to satisfy withholding taxes related to this Award (the Tax Withholding Shares) by a fraction, the numerator of which is the number of Restricted Shares you forfeited (or with respect to which repayment is required) and the denominator of which is the number of Restricted Shares that comprised the Award (reduced by the Tax Withholding Shares).
6. Certain Terminations of Employment.
(a) In the event of the termination of your Employment for any reason (determined as described in Section 1.2.19 of the Plan), all terms and conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions).
(b) Unless otherwise determined by the Committee in its discretion, Paragraph 4(b) will not apply following termination of Employment that 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.
7. Change in Control. Notwithstanding anything to the contrary in this Award Agreement, in the event a Change in Control shall occur and within 18 months thereafter the Firm terminates your Employment without Cause or you terminate your Employment for Good Reason, all of the Transfer Restrictions and risks of forfeiture with respect to your Restricted Shares shall be removed.
8. Dividends. You shall be entitled to receive on a current basis any regular cash dividend paid by GS Inc. in respect of your Restricted Shares, or, if the Restricted Shares are held in escrow, the Firm will direct the transfer/paying agent to distribute the dividends to you in respect of your Restricted Shares.
9. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares and the removal of the Transfer Restrictions are conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan. To the extent permitted by applicable law, the Firm, in its sole discretion, may require you to provide amounts equal to all or a portion of any Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection with the grant, vesting or delivery of this Award by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise), (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award or (iii) in Shares delivered to you pursuant to this Award. In addition, if you are an individual with separate employment contracts (at any time during and/or after the Firms ____ fiscal year), the Firm may, in its sole discretion, require you to provide for a reserve in an amount the Firm determines is advisable or necessary in connection with any actual, anticipated or potential tax consequences related to your separate employment contracts by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award (or any other Outstanding Awards under the Plan). In no event, however, shall any choice you may have under the preceding two sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or the timing of payment of tax obligations.
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(b) If you are or become a Managing Director, your rights in respect of the Restricted Shares 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 this Award are conditioned on the receipt to the full satisfaction of the Committee of any required consents (as described in Section 3.3 of the Plan) that the Committee may determine to be necessary or advisable.
(d) You understand and agree, in accordance with Section 3.3 of the Plan, by accepting this Award you have expressly consented to all of the items listed in Section 3.3.3(d) of the Plan, which are incorporated herein by reference.
(e) You understand and agree, in accordance with Section 3.22 of the Plan, by accepting this Award you have agreed to be subject to the Firms policies in effect from time to time concerning trading in Shares and hedging or pledging Shares and equity-based compensation or other awards (including, without limitation, the Firms 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 this Award in accordance with such rules and procedures as may be adopted from time to time with respect to sales of such Shares (which may include, without limitation, restrictions relating to the timing of sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation of orders and volume limits determined by the Firm). In addition, you understand and agree that you shall be responsible for all brokerage costs and other fees or expenses associated with this Award, including, without limitation, such brokerage costs or other fees or expenses in connection with the sale of Shares delivered to you hereunder.
(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under a separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
(g) Without limiting the application of Paragraphs 4(c), 4(d) and 4(f), if:
(i) your Employment with the Firm terminates solely because you resigned to accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency, or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding Restricted Shares would result in an actual or perceived conflict of interest (Conflicted Employment); or
(ii) following your termination of Employment other than described in Paragraph 9g)(i), you notify the Firm that you have accepted or intend to accept Conflicted Employment at a time when you continue to hold Outstanding Restricted Shares;
then any Transfer Restrictions shall be removed as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
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(h) In addition to and without limiting the generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person shall have any liability to you or any other person for any action taken or omitted in respect of this or any other Award.
(i) You understand and agree, by accepting this Award, that Restricted Shares hereby are pledged to the Firm to secure its right to such Restricted Shares in the event you forfeit any such Restricted Shares pursuant to the terms of the Plan or this Award Agreement. This Award, if held in escrow, will not be delivered to you but will be held by an escrow agent for your benefit. If an escrow agent is used, such escrow agent will also hold the Restricted Shares for the benefit of the Firm for the purpose of perfecting its security interest.
(j) You understand and agree that, in the event of your termination of Employment while you continue to hold Outstanding Restricted Shares, you may be required to certify, from time to time, your compliance with all terms and conditions of the Plan and this Award Agreement. You understand and agree that (i) it is your responsibility to inform the Firm of any changes to your address to ensure timely receipt of the certification materials, (ii) you are responsible for obtaining such certification materials by contacting the Firm if you do not receive certification materials, and (iii) failure to return properly completed certification materials by the deadline specified in the certification materials will result in the forfeiture of all of your Outstanding Restricted Shares in accordance with Paragraph 4(d)(iii).
10. Right of Offset. The Firm may exercise its right of offset under Section 3.4 of the Plan by conditioning the removal of the Transfer Restrictions on your satisfaction of your obligations to the Firm in a manner deemed appropriate by the Committee, including by the application of some or all of your Restricted Shares.
11. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect; provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall materially adversely affect your rights and obligations under this Award Agreement without your consent; and provided further that the Committee expressly reserves its rights to amend 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.
12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or as otherwise may be provided by the Committee, and without limiting Paragraph 3(c) hereof, 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 13 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all recipients of Restricted Shares may transfer some or all of their Restricted Shares (which shall continue to be subject to the Transfer Restrictions until the Transferability Date) through a gift for no consideration to any immediate family member (as determined pursuant to the procedures) or a trust in which the recipient and/or the recipients immediate family members in the aggregate have 100% of the beneficial interest (as determined pursuant to the procedures).
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 Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | ||
Title: |
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Appendix A
Treatment of ____ Year-End Restricted Stock under the Shareholders Agreement. Capitalized terms used in this Appendix A that are not defined in this Appendix A, the Award Agreement or the Plan have the meanings as used or defined in the Shareholders Agreement.
| With respect to all Restricted Shares that are awarded under the ____ Year-End Restricted Stock Award, an event triggering the recalculation of the Covered Persons Covered Shares shall be deemed to occur with respect to one-third of such Restricted Shares on each of the January ____ Date, the January ____ Date, and the January ____ Date (each such date being referred to as a Trigger Date). |
| As of each such Trigger Date, such Covered Persons Covered Shares shall be increased by: |
| the gross number of Restricted Shares for such Trigger Date (determined before any deductions, including any deductions for withholding taxes, fees or commissions), minus |
| such gross number multiplied by the Specified Tax Rate that would apply if the Covered Person had received, on or around the Trigger Date, a delivery of Common Stock underlying Year-End RSUs instead of receiving a grant of Restricted Shares. |
| Until a Trigger Date, the Covered Person shall not be deemed to be the Sole Beneficial Owner of the Restricted Shares relating to such Trigger Date (and therefore until such Trigger Date such Shares shall not be counted toward the satisfaction of the Transfer Restrictions (as defined in the Shareholders Agreement)). |
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Exhibit 10.53
THE GOLDMAN SACHS AMENDED AND RESTATED
STOCK INCENTIVE PLAN
____ YEAR-END SHORT-TERM RESTRICTED STOCK AWARD
This Award Agreement sets forth the terms and conditions of the ____ Year-End Short-Term Restricted Stock Award (this Award) granted to you under The Goldman Sachs 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. This Award is made up of the number of Restricted Shares (Short- Term Restricted Shares) set forth on your Award Statement as ____ Year-End Short-Term Restricted Stock. A Restricted Share is a share of Common Stock (a Share) delivered under the Plan that is subject to certain transfer restrictions and other terms and conditions described in this Award Agreement. This Award is conditioned upon your granting to the Firm the full power and authority to register the Short-Term Restricted Shares in its or its designees name and authorizing the Firm or its designee to sell, assign or transfer any Short-Term Restricted Shares in the event of forfeiture of your Short-Term Restricted Shares. Unless otherwise determined by the Firm, this Award is conditioned upon your filing an election with the Internal Revenue Service within 30 days of the grant of your Short-Term Restricted Shares, electing pursuant to Section 83(b) of the Code to be taxed currently on the fair market value of the Short-Term Restricted Shares on the Date of Grant. This will result in the recognition of taxable income on the Date of Grant equal to such fair market value (but will not affect the Vesting of your Short-Term Restricted Shares or the removal of the Transfer Restrictions). THIS AWARD IS CONDITIONED ON YOUR EXECUTING THE RELATED SIGNATURE CARD AND RETURNING IT TO THE ADDRESS DESIGNATED ON THE SIGNATURE CARD AND/OR BY THE METHOD DESIGNATED ON THE SIGNATURE CARD BY THE DATE SPECIFIED, 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 12. BY EXECUTING THE RELATED SIGNATURE CARD (WHICH, AMONG OTHER THINGS, OPENS THE CUSTODY ACCOUNT REFERRED TO IN PARAGRAPH 3(b) 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. Certain Material Terms of Short-Term Restricted Shares.
(a) Vesting. All of your Short-Term Restricted Shares shall be Vested on the Date of Grant. When a Short-Term Restricted Share is Vested, it means only that your continued active Employment is not required in order for your Short-Term Restricted Shares to become fully transferable without risk of forfeiture. However, all other terms and conditions of this Award Agreement (including the Transfer Restrictions described in Paragraph 3(c)) shall continue to apply to such Short-Term Restricted Shares, and failure to meet such terms and conditions may result in the forfeiture of all of your rights in respect of the Short-Term Restricted Shares and their return to GS Inc. and the cancellation of this Award.
(b) Date of Grant. The date on which your Short-Term Restricted Shares will be granted, subject to the conditions of this Award Agreement, is set forth on your Award Statement. Except as provided in this Paragraph 3 and in Paragraph 2, the Short-Term Restricted Shares shall be delivered to an escrow, custody, brokerage or similar account, as approved or required by the Firm, and, except as provided in Paragraphs 3(d), 7 and 9(g), shall be subject to the Transfer Restrictions described in Paragraph 3(c).
(c) Transfer Restrictions; Escrow.
(i) Except as provided in Paragraphs 3(d), 7, and 9(g), the Short-Term Restricted Shares shall not be permitted to be sold, exchanged, transferred, assigned, pledged, hypothecated, fractionalized, hedged or otherwise disposed of (including through the use of any cash-settled instrument), whether voluntarily or involuntarily by you (such restrictions collectively referred to herein as the Transfer Restrictions) until the date specified on your Award Statement as the Transferability Date. Any purported sale, exchange, transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition in violation of the Transfer Restrictions shall be void. If and to the extent Short-Term Restricted Shares are certificated, the Certificates representing such Short-Term Restricted Shares are subject to the restrictions in this Paragraph 3(c)(i), and GS Inc. shall advise its transfer agent to place a stop order against such Short-Term Restricted Shares. Within 30 Business Days after the Transferability Date (or any other date described herein on which the Transfer Restrictions are removed), GS Inc. shall take, or shall cause to be taken, such steps as may be necessary to remove the Transfer Restrictions in respect of any of such Short-Term Restricted Shares that have not been previously forfeited.
(ii) In the discretion of the Committee, delivery of the Short-Term Restricted Shares may be made directly into an escrow account meeting such terms and conditions as are determined by the Firm, provided that any other conditions or restrictions on delivery of Shares required by this Award Agreement have been satisfied. By accepting your Short-Term Restricted Shares, you have agreed on behalf of yourself (and your estate or other permitted beneficiary) that the Firm may establish and maintain an escrow account for your benefit on such terms and conditions as the Firm may deem necessary or appropriate (which may include, without limitation, your (or your estate or other permitted beneficiary) executing any documents related to, and your (or your estate or other permitted beneficiary) paying for any costs associated with, such account). Any such escrow arrangement shall, unless otherwise determined by the Firm, provide that (A) the escrow agent shall have the exclusive authority to vote such Shares while held in escrow and (B) dividends paid on such Shares held in escrow may be accumulated and shall be paid as determined by the Firm in its sole discretion.
(iii) If you are a party to the Amended and Restated Shareholders Agreement (the Shareholders Agreement), your Short-Term Restricted Shares will be subject to the Shareholders Agreement, except those Shares will not be considered Covered Shares for purposes of Section 2.1(a) of the Shareholders Agreement. Until the Transferability Date, you shall not be deemed to be the Sole Beneficial Owner (as defined in the Shareholders Agreement) of the Short-Term Restricted Shares (and therefore until the Transferability Date such Shares shall not be counted toward the satisfaction of the Transfer Restrictions (as defined in the Shareholders Agreement)).(d) Death. Notwithstanding any other Paragraph of this Award Agreement, if you die prior to the Transferability 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, the Transfer Restrictions then applicable to such Short-Term Restricted Shares shall be removed. The Committee may adopt procedures pursuant to which you may be permitted to specifically bequeath some or all of your Short-Term Restricted Shares under your will to an organization described in Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable organization as may be approved by the Committee).
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4. Termination of Employment; Forfeiture of Short-Term Restricted Shares.
(a) Unless the Committee determines otherwise, and except as provided in Paragraphs 3(d), 7 and 9(g), if your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm, the Transfer Restrictions shall continue to apply to your Short-Term Restricted Shares that were Outstanding prior to your termination of Employment until the Transferability Date in accordance with Paragraph 3(c).
(b) Unless the Committee determines otherwise, and except as provided in Paragraph 7, your rights in respect of Outstanding Short-Term Restricted Shares immediately shall be forfeited, and such Shares immediately shall be returned to GS Inc., if, before the Transferability Date:
(i) you attempt to have any dispute under the Plan or this Award Agreement resolved in any manner that is not provided for by Paragraph 12 or Section 3.17 of the Plan;
(ii) any event that constitutes Cause has occurred;
(iii) 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 or this Award, including, without limitation, the Firms 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;
(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. On the Transferability Date, you shall be deemed to have represented and certified that you have complied with all the terms and conditions of the Plan and this Award Agreement;
(v) as a result of any action brought by you, it is determined that any of the terms or conditions for the expiration of the Transfer Restrictions with respect to this Award are invalid; or
(vi) your Employment terminates for any reason or you otherwise are no longer actively employed with the Firm and an entity to which you provide services grants you cash, equity or other property (whether vested or unvested) to replace, substitute for or otherwise in respect of any Outstanding Short-Term Restricted Shares.
(c) For the avoidance of doubt, failure to pay or reimburse the Firm, upon demand, for any amount you owe to the Firm shall constitute (i) failure to meet an obligation you have under an agreement referred to in Paragraph 4(b)(ii), regardless of whether such obligation arises under a written agreement, and/or (ii) a material violation of Firm policy constituting Cause referred to in Paragraph 4(b)(i).
(d) Unless the Committee determines otherwise, without limiting any other provision in Paragraphs 4(b), and except as provided in Paragraph 7, if the Committee determines that, during the Firms ____ fiscal year, you participated in the structuring or marketing of any product or service, or
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participated on behalf of the Firm or any of its clients in the purchase or sale of any security or other property, in any case without appropriate consideration of the risk to the Firm or the broader financial system as a whole (for example, where you have improperly analyzed such risk or where you have failed sufficiently to raise concerns about such risk) and, as a result of such action or omission, the Committee determines there has been, or reasonably could be expected to be, a material adverse impact on the Firm, your business unit or the broader financial system, your rights in respect of your Outstanding Short-Term Restricted Shares awarded as part of this Award immediately shall be forfeited, such Shares immediately shall be returned to GS Inc. and this Award shall be cancelled (and any dividends or other amounts paid or delivered to you in respect of this Award shall be subject to repayment in accordance with, or in a manner similar to the provisions described in, Paragraph 5).
5. Repayment and Forfeiture.
(a) The provisions of Section 2.5.2 of the Plan (which require Grantees to repay to the Firm the value of Short-Term Restricted Shares, without reduction for related withholding tax, if the Committee determines that all terms and conditions of this Award Agreement were not satisfied) shall apply to this Award (and, for the avoidance of doubt, shall include repayment of all dividends received on Short-Term Restricted Shares), except that if the condition that was not satisfied would have resulted in the Transfer Restrictions not being removed, then the Fair Market Value of the Shares shall be determined as of the Transferability Date (or any earlier date that the Transfer Restrictions were removed).
(b) If and to the extent you forfeit any Short-Term Restricted Shares hereunder or are required to repay any amount in respect of a number of Short-Term Restricted Shares pursuant to Paragraph 5(a), you also will be required to pay to the Firm, immediately upon demand therefor, an amount equal to the Fair Market Value (determined as of the Date of Grant) of the number of Shares that were used to satisfy tax withholding for such Short-Term Restricted Shares that are forfeited or subject to repayment pursuant to Paragraph 5(a). Such repayment amount for Short-Term Restricted Shares applied to tax withholding will be determined by multiplying the number of Short-Term Restricted Shares that were used to satisfy withholding taxes related to this Award (the Tax Withholding Shares) by a fraction, the numerator of which is the number of Short-Term Restricted Shares you forfeited (or with respect to which repayment is required) and the denominator of which is the number of Short-Term Restricted Shares that comprised the Award (reduced by the Tax Withholding Shares).
6. Termination of Employment. In the event of the termination of your Employment for any reason (determined as described in Section 1.2.19 of the Plan), all terms and conditions of this Award Agreement shall continue to apply (including any applicable Transfer Restrictions).
7. Change in Control. Notwithstanding anything to the contrary in this Award Agreement, in the event a Change in Control shall occur and within 18 months thereafter the Firm terminates your Employment without Cause or you terminate your Employment for Good Reason, all of the Transfer Restrictions and risks of forfeiture with respect to your Short-Term Restricted Shares shall be removed.
8. Dividends. You shall be entitled to receive on a current basis any regular cash dividend paid by GS Inc. in respect of your Short-Term Restricted Shares, or, if the Short-Term Restricted Shares are held in escrow, the Firm will direct the transfer/paying agent to distribute the dividends to you in respect of your Short-Term Restricted Shares.
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9. Certain Additional Terms, Conditions and Agreements.
(a) The delivery of Shares and the removal of the Transfer Restrictions are conditioned on your satisfaction of any applicable withholding taxes in accordance with Section 3.2 of the Plan. To the extent permitted by applicable law, the Firm, in its sole discretion, may require you to provide amounts equal to all or a portion of any Federal, State, local, foreign or other tax obligations imposed on you or the Firm in connection with the grant, vesting or delivery of this Award by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise), (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award or (iii) in Shares delivered to you pursuant to this Award. In addition, if you are an individual with separate employment contracts (at any time during and/or after the Firms ____ fiscal year), the Firm may, in its sole discretion, require you to provide for a reserve in an amount the Firm determines is advisable or necessary in connection with any actual, anticipated or potential tax consequences related to your separate employment contracts by requiring you to choose between remitting such amount (i) in cash (or through payroll deduction or otherwise) or (ii) in the form of proceeds from the Firms executing a sale of Shares delivered to you pursuant to this Award (or any other Outstanding Awards under the Plan). In no event, however, shall any choice you may have under the preceding two sentences determine, or give you any discretion to affect, the timing of the delivery of Shares or the timing of payment of tax obligations.
(b) If you are or become a Managing Director, your rights in respect of the Short-Term Restricted Shares 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 this Award are conditioned on the receipt to the full satisfaction of the Committee of any required consents (as described in Section 3.3 of the Plan) that the Committee may determine to be necessary or advisable.
(d) You understand and agree, in accordance with Section 3.3 of the Plan, by accepting this Award you have expressly consented to all of the items listed in Section 3.3.3(d) of the Plan, which are incorporated herein by reference.
(e) You understand and agree, in accordance with Section 3.22 of the Plan, by accepting this Award you have agreed to be subject to the Firms policies in effect from time to time concerning trading in Shares and hedging or pledging Shares and equity-based compensation or other awards (including, without limitation, the Firms 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 this Award in accordance with such rules and procedures as may be adopted from time to time with respect to sales of such Shares (which may include, without limitation, restrictions relating to the timing of sale requests, the manner in which sales are executed, pricing method, consolidation or aggregation of orders and volume limits determined by the Firm). In addition, you understand and agree that you shall be responsible for all brokerage costs and other fees or expenses associated with this Award, including, without limitation, such brokerage costs or other fees or expenses in connection with the sale of Shares delivered to you hereunder.
(f) GS Inc. may affix to Certificates representing Shares issued pursuant to this Award Agreement any legend that the Committee determines to be necessary or advisable (including to reflect any restrictions to which you may be subject under a separate agreement with GS Inc.). GS Inc. may advise the transfer agent to place a stop order against any legended Shares.
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(g) Without limiting the application of Paragraphs 4(b) and 4(d) if:
(i) your Employment with the Firm terminates solely because you resigned to accept employment at any U.S. Federal, state or local government, any non-U.S. government, any supranational or international organization, any self-regulatory organization, or any agency, or instrumentality of any such government or organization, or any other employer determined by the Committee, and as a result of such employment, your continued holding of your Outstanding Short-Term Restricted Shares would result in an actual or perceived conflict of interest (Conflicted Employment); or
(ii) following your termination of Employment other than described in Paragraph 9(g)(i), you notify the Firm that you have accepted or intend to accept Conflicted Employment at a time when you continue to hold Outstanding Short-Term Restricted Shares;
then any Transfer Restrictions shall be removed as soon as practicable after the Committee has received satisfactory documentation relating to your Conflicted Employment.
(h) In addition to and without limiting the generality of the provisions of Section 1.3.5 of the Plan, neither the Firm nor any Covered Person shall have any liability to you or any other person for any action taken or omitted in respect of this or any other Award.
(i) You understand and agree, by accepting this Award, that Short-Term Restricted Shares hereby are pledged to the Firm to secure its right to such Short-Term Restricted Shares in the event you forfeit any such Short-Term Restricted Shares pursuant to the terms of the Plan or this Award Agreement. This Award, if held in escrow, will not be delivered to you but will be held by an escrow agent for your benefit. If an escrow agent is used, such escrow agent will also hold the Short-Term Restricted Shares for the benefit of the Firm for the purpose of perfecting its security interest.
(j) You understand and agree that, in the event of your termination of Employment while you continue to hold Outstanding Short-Term Restricted Shares, you may be required to certify, from time to time, your compliance with all terms and conditions of the Plan and this Award Agreement. You understand and agree that (i) it is your responsibility to inform the Firm of any changes to your address to ensure timely receipt of the certification materials, (ii) you are responsible for obtaining such certification materials by contacting the Firm if you do not receive certification materials, and (iii) failure to return properly completed certification materials by the deadline specified in the certification materials will result in the forfeiture of all of your Outstanding Short-Term Restricted Shares in accordance with Paragraph 4(b)(iii).
10. Right of Offset. The Firm may exercise its right of offset under Section 3.4 of the Plan by conditioning the removal of the Transfer Restrictions on your satisfaction of your obligations to the Firm in a manner deemed appropriate by the Committee, including by the application of some or all of your Short-Term Restricted Shares.
11. Amendment. The Committee reserves the right at any time to amend the terms and conditions set forth in this Award Agreement, and the Board may amend the Plan in any respect; provided that, notwithstanding the foregoing and Sections 1.3.2(f), 1.3.2(g) and 3.1 of the Plan, no such amendment shall materially adversely affect your rights and obligations under this Award Agreement without your consent; and provided further that the Committee expressly reserves its rights to amend 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.
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12. 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.
13. Non-transferability. Except as otherwise may be provided in this Paragraph 13 or as otherwise may be provided by the Committee, and without limiting Paragraph 3(c) hereof, 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 13 or Section 3.5 of the Plan shall be void. The Committee may adopt procedures pursuant to which some or all recipients of Short-Term Restricted Shares may transfer some or all of their Short-Term Restricted Shares (which shall continue to be subject to the Transfer Restrictions until the Transferability Date) through a gift for no consideration to any immediate family member (as determined pursuant to the procedures) or a trust in which the recipient and/or the recipients immediate family members in the aggregate have 100% of the beneficial interest (as determined pursuant to the procedures).
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 Grant.
THE GOLDMAN SACHS GROUP, INC. | ||
By: | ||
Name: | ||
Title: |
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Exhibit 10.61
AIRCRAFT TIME SHARING AGREEMENT
This Agreement is made and entered into as of by and between GSTP LLC, a Delaware limited liability company (GSTP) and wholly owned subsidiary of The Goldman Sachs Group, Inc, a Delaware corporation (together with its subsidiaries and affiliates, including GSTP, Goldman Sachs), and (Lessee).
WITNESSETH:
WHEREAS, GSTP entered into a Trust Agreement, dated , as supplemented, with , not in its individual capacity but solely as Owner Trustee (the Trustee). GSTP entered into agreements with (the Operative Agreements) and thereafter assigned such Operative Agreements to the Trust, which enables GSTP to conduct operations under Federal Aviation Regulations (FAR) Part 91 Subpart K in accordance with the Operative Agreements; and
WHEREAS, under the Operative Agreements, GSTP is the operator of, and the Trustee is the registered owner of undivided interests in, aircraft bearing the Manufacturers Serial Number(s) and the United States Federal Aviation Administration (FAA) Registration Number(s) listed on Schedule A hereto, as amended from time to time (collectively, the Aircraft); and
WHEREAS, from time to time, in connection with use of the Aircraft for Goldman Sachs business purposes, Lessee may desire to use the Aircraft for personal usage incidental to business travel; and
WHEREAS, the parties intend for Lessee to reimburse Goldman Sachs for certain costs associated with such personal usage incidental to business travel on a non-exclusive time sharing basis in accordance with FAR § 91.501;
NOW THEREFORE, in consideration of the mutual covenants herein set forth, the parties agree as follows:
1. Provision of Aircraft and Crew. Subject to Aircraft availability, Goldman Sachs agrees to allow Lessees personal usage of the Aircraft incidental to business travel on a time sharing basis in accordance with the provisions of FAR §§ 91.501(b)(6), (b)(10), (c)(1) and (d). Goldman Sachs shall provide, at its sole expense, fully qualified flight crew for all flight operations under this Agreement. If Goldman Sachs is no longer the operator of any of the Aircraft, Schedule A shall be deemed amended to delete any reference to such Aircraft and this Agreement shall be terminated as to such Aircraft but shall remain in full force and effect with respect to each of the other Aircraft, if any. No such termination shall affect any of the rights and obligations of the parties accrued or incurred prior to such termination. If Goldman Sachs becomes the operator of any aircraft not listed on Schedule A hereto, Schedule A shall be deemed amended to include such Aircraft, and this Agreement shall remain in full force and effect with respect to such Aircraft and each of the other Aircraft, if any.
2. Term. The term of this Agreement (the Term) shall commence on the date hereof and shall continue until terminated by either party on written notice to the other party. This Agreement shall terminate immediately in the event that Lessee is no longer an employee or director of Goldman Sachs. Notwithstanding the foregoing, any provisions directly or indirectly related to Lessees payment obligations for flights completed prior to the date of termination shall survive the termination of this Agreement.
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3. Reimbursement of Expenses. For each flight conducted under this Agreement involving personal usage incidental to business travel, Lessee shall pay Goldman Sachs an amount determined by Goldman Sachs for the expenses attributable to such personal usage incidental to business travel in an amount not to exceed that permitted by FAR §91.501(d). The invoice to Lessee shall not exceed the aggregate cost of:
(a) | Fuel, oil, lubricants, and other additives; |
(b) | Travel expenses of the crew, including food, lodging, and ground transportation; |
(c) | Hangar and tie-down costs away from the Aircrafts base of operation; |
(d) | Insurance obtained for the specific flight; |
(e) | Landing fees, airport taxes, and similar assessments; |
(f) | Customs, foreign permit, and similar fees directly related to the flight; |
(g) | In-flight food and beverages; |
(h) | Passenger ground transportation; |
(i) | Flight planning and weather contract services; and |
(j) | An additional charge equal to one hundred percent (100%) of the expenses listed in subsection (a) above. |
4. Invoicing and Payment. All payments to be made to Goldman Sachs by Lessee hereunder shall be paid in the manner set forth in this Section 4. Goldman Sachs will pay, or cause to be paid, all expenses related to the operation of the Aircraft hereunder in the ordinary course. As soon as practicable after the relevant flight, Goldman Sachs shall provide or cause to be provided to Lessee an invoice detailing all amounts payable by Lessee pursuant to Section 3 of this Agreement. Lessee shall pay all amounts due under the invoice not later than 60 days after receipt thereof unless otherwise specified in such invoice.
5. Flight Requests. Lessee will provide the designated representatives of Goldman Sachs with flight requests for Lessees personal usage incidental to business travel pursuant to this Agreement as far in advance of the relevant flight as possible and in accordance with all policies established by Goldman Sachs. Flight requests shall be in a form, whether oral or written, mutually convenient to the parties. Goldman Sachs shall have sole and exclusive authority over the scheduling of the Aircraft. Goldman Sachs shall not be liable to Lessee or any other person for loss, injury, or damage occasioned by the delay or failure to furnish the Aircraft and crew pursuant to this Agreement for any reason.
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Any flights or personal usage incidental to business travel scheduled under this Agreement are subject to cancellation by either party without incurring liability to the other party. In the event of a cancellation, the canceling party shall provide the maximum notice reasonably practicable.
6. Operational Authority and Control. Goldman Sachs shall be responsible for the physical and technical operation of the Aircraft and the safe performance of all flights under this Agreement, and shall retain full authority and control, including exclusive operational control and exclusive possession, command and control of the Aircraft for all flights under this Agreement. Goldman Sachs shall furnish at its expense a fully qualified flight crew with appropriate credentials to conduct each flight undertaken under this Agreement. In accordance with applicable FARs, the qualified flight crew provided by Goldman Sachs will exercise all required and/or appropriate duties and responsibilities in regard to the safety of each flight conducted hereunder. The pilot-in-command shall have absolute discretion in all matters concerning the preparation of the Aircraft for flight and the flight itself, the load carried and its distribution, the decision whether or not a flight shall be undertaken or personal usage incidental to business travel shall be permitted, the route to be flown, the place where landings shall be made, and all other matters relating to operation of the Aircraft. Lessee specifically agrees that the flight crew shall have final and complete authority to delay or cancel any flight or any personal usage incidental to business travel for any reason or condition that in the sole judgment of the pilot-in-command could compromise the safety of the flight, and to take any other action that in the sole judgment of the pilot-in-command is necessitated by considerations of safety. No such action of the pilot-in-command shall create or support any liability to Lessee or any other person for loss, injury, damage or delay. Goldman Sachss operation of the Aircraft hereunder shall be strictly within the guidelines and policies established by Goldman Sachs and FAR Part 91.
7. Aircraft Maintenance. Goldman Sachs shall, at its own expense, cause the Aircraft to be inspected, maintained, serviced, repaired, overhauled, and tested in accordance with FAR Part 91 so that the Aircraft will remain in good operating condition and in a condition consistent with its airworthiness certification and shall take such requirements into account in scheduling the Aircraft hereunder. Performance of maintenance, preventive maintenance or inspection shall not be delayed or postponed for the purpose of scheduling the Aircraft unless such maintenance or inspection can safely be conducted at a later time in compliance with applicable laws, regulations and requirements, and such delay or postponement is consistent with the sound discretion of the pilot-in-command. In the event that any non-standard maintenance is required during the term and will interfere with Lessees requested or scheduled personal usage incidental to business travel, Goldman Sachs, or Goldman Sachss pilot-in-command, shall notify Lessee of the maintenance required, the effect on the ability to comply with Lessees requested or scheduled personal usage incidental to business travel and the manner in which the parties will proceed with the performance of such maintenance and conduct of such flight(s). In no event shall Goldman Sachs be liable to Lessee or any other person for loss, injury or damage occasioned by the delay or failure to furnish the Aircraft under this Agreement, whether or not maintenance-related.
8. Insurance. Goldman Sachs, at its expense, will maintain or cause to be maintained in full force and effect throughout the Term of this Agreement (i) comprehensive aircraft and liability insurance against bodily injury and property damage claims, including, without limitation, contractual liability, in respect of the Aircraft in such amount as is customarily maintained by prudent operators of similar aircraft; and (ii) hull insurance for the full replacement cost of the Aircraft.
3
Goldman Sachs shall use reasonable commercial efforts to provide such additional insurance for specific flights under this Agreement as Lessee may request in writing. Lessee acknowledges that any trips scheduled to the European Union may require Goldman Sachs to purchase additional insurance to comply with applicable regulations.
9. Use of Aircraft. Lessee warrants that:
(i) Lessee will use the Aircraft under this Agreement for and only for his or her own account, including the carriage of guests, and will not use the Aircraft for the purpose of providing transportation of passengers or cargo for compensation or hire or for common carriage;
(ii) Lessee will not permit any lien, security interest or other charge or encumbrance to attach against the Aircraft as a result of his or her actions or inactions, and shall not attempt to convey, mortgage, assign, lease or in any way alienate the Aircraft or Goldman Sachss rights hereunder or create any kind of lien or security interest involving the Aircraft or do anything or take any action that might mature into such a lien; and
(iii) During the Term of this Agreement, Lessee will abide by and conform to all such laws, governmental and airport orders, rules, and regulations as shall from time to time be in effect relating in any way to the operation or use of the Aircraft by a lessee under a time sharing arrangement and all applicable policies of Goldman Sachs.
10. Limitation of Liability. NEITHER GOLDMAN SACHS (NOR ITS AFFILIATES) MAKES, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO ANY AIRCRAFT TO BE USED HEREUNDER OR ANY ENGINE OR COMPONENT THEREOF INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, AIRWORTHINESS, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT OR TITLE.
IN NO EVENT SHALL GOLDMAN SACHS OR ITS AFFILIATES BE LIABLE FOR OR HAVE ANY DUTY OF INDEMNIFICATION, CONTRIBUTION OR REIMBURSEMENT TO LESSEE, LESSEES EMPLOYEES, AGENTS OR GUESTS FOR ANY LOSS, CLAIM, DAMAGE OR EXPENSE OF ANY KIND UNLESS SUCH LOSS, CLAIM, DAMAGE OR EXPENSE IS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A NON-APPEALABLE JUDGMENT TO BE SOLELY DUE TO GOLDMAN SACHS BAD FAITH OR WILLFUL MISCONDUCT. The provisions of this Section 10 shall survive the termination or expiration of this Agreement.
11. Notices and Communications. All notices and other communications under this Agreement shall be in writing (except as permitted in Section 5) and shall be given (and shall be deemed to have been duly given upon receipt or refusal to accept receipt) by personal delivery, by facsimile (with a simultaneous confirmation copy sent by first class mail properly addressed and postage prepaid), by email, or by a reputable overnight courier service, addressed as follows:
4
If to Goldman Sachs: |
The Goldman Sachs Group, Inc. 200 West Street New York, New York 10282 Fax: Email: | |
If to Lessee: |
| |
c/o The Goldman Sachs Group, Inc. 200 West Street New York, New York 10282 Fax: Email: |
or to such other person or address as either party may from time to time designate in writing to the other party. Notices shall be effective upon receipt.
12. Entire Agreement. This Agreement constitutes the entire understanding between the parties with respect to its subject matter, and there are no representations, warranties, rights, obligations, liabilities, conditions, covenants, or agreements relating to such subject matter that are not expressly set forth herein. There are no third-party beneficiaries of this Agreement.
13. Further Acts. Goldman Sachs and Lessee shall from time to time perform such other and further acts and execute such other and further instruments as may be required by law or may be reasonably necessary (i) to carry out the intent and purpose of this Agreement, and (ii) to establish, maintain and protect the respective rights and remedies of the other party.
14. Successors and Assigns. Lessee shall not have the right to assign, transfer or pledge this Agreement and any such attempted assignment, transfer or pledge shall be null and void. This Agreement shall be binding on the parties hereto and their respective heirs, executors, administrators, successors and assigns, and shall inure to the benefit of the parties hereto, and, except as otherwise provided herein, their respective heirs, executors, administrators, other legal representatives, successors and permitted assigns.
15. Taxes. Lessee shall be responsible for paying, and Goldman Sachs shall be responsible for collecting from Lessee and paying over to the appropriate authorities, all applicable Federal excise taxes imposed under Internal Revenue Code §4261 and all sales, use and other excise taxes imposed by any authority in connection with the use of the Aircraft by Lessee hereunder.
16. Governing Law and Consent to Jurisdiction. This Agreement shall be governed by the laws of the State of New York without regard to its choice of law principles. The parties hereby consent and agree to submit to the exclusive jurisdiction and venue of any state or federal court in New York, New York in any proceedings hereunder, and each hereby waives any objection to any such proceedings based on improper venue or forum non-conveniens or similar principles. The parties hereto hereby further consent and agree to the exercise of such personal jurisdiction over them by such courts with respect to any such proceedings, waive any objection to the assertion or exercise of such jurisdiction and consent to process being served in any such proceedings in the manner provided for the giving of notices hereunder.
5
17. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions shall not be affected or impaired.
18. Amendment or Modification. This Agreement may be amended, modified or terminated only in writing duly executed by the parties hereto.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement, binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart. Each party may transmit its signature by facsimile, and any faxed counterpart of this Agreement shall have the same force and effect as a manually-executed original.
20. Truth-in-Leasing Compliance. Goldman Sachs, on behalf of Lessee, shall (i) deliver a copy of this Agreement to the Aircraft Registration Branch, Technical Section, of the FAA in Oklahoma City within 24 hours of its execution; (ii) notify the appropriate Flight Standards District Office at least 48 hours prior to the first flight under this Agreement of the registration number of the Aircraft, and the location of the airport of departure and departure time for such flight; and (iii) carry a copy of this Agreement onboard the Aircraft at all times when the Aircraft is being operated under this Agreement.
21. TRUTH IN LEASING STATEMENT PURSUANT TO SECTION 91.23 OF THE FEDERAL AVIATION REGULATIONS:
(a) GOLDMAN SACHS CERTIFIES THAT EACH OF THE AIRCRAFT HAS BEEN INSPECTED AND MAINTAINED DURING THE 12-MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT (OR SUCH SHORTER PERIOD AS GOLDMAN SACHS SHALL HAVE POSSESSED THE AIRCRAFT) IN ACCORDANCE WITH THE PROVISIONS OF PART 91 OF THE FEDERAL AVIATION REGULATIONS. EACH OF THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED IN COMPLIANCE WITH THE MAINTENANCE AND INSPECTION REQUIREMENTS FOR ALL OPERATIONS TO BE CONDUCTED UNDER THIS AGREEMENT.
(B) GOLDMAN SACHS AGREES, CERTIFIES AND ACKNOWLEDGES, AS EVIDENCED BY ITS SIGNATURE BELOW, THAT WHENEVER ANY OF THE AIRCRAFT IS OPERATED UNDER THIS AGREEMENT, GOLDMAN SACHS SHALL BE KNOWN AS, CONSIDERED, AND SHALL IN FACT BE THE OPERATOR OF THE AIRCRAFT, AND THAT GOLDMAN SACHS UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.
(C) THE PARTIES UNDERSTAND THAT AN EXPLANATION OF FACTORS AND PERTINENT FEDERAL AVIATION REGULATIONS BEARING ON OPERATIONAL CONTROL CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE.
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above written. The persons signing below warrant their authority to sign.
GSTP LLC |
LESSEE: | |||||||
By: |
The Goldman Sachs Group, Inc., as Managing Member |
|||||||
By: |
|
|
||||||
Name: | ||||||||
Title: |
A legible copy of this Agreement shall be kept in the Aircraft for all operations conducted hereunder.
7
SCHEDULE A
Year/Make/Model |
Manufacturers Serial Number |
FAA Registration Number | ||
8
EXHIBIT 12.1
THE GOLDMAN SACHS GROUP, INC. and SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES AND RATIOS OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Year Ended December | Year Ended November | One Month Ended December |
||||||||||||||||||||||||||||||||||||||||||
$ in millions | 2011 | 2010 | 2009 | 2008 | 2007 | 2008 | ||||||||||||||||||||||||||||||||||||||
Net earnings/(loss) |
$ | 4,442 | $ | 8,354 | $ | 13,385 | $ | 2,322 | $ | 11,599 | $ | (780 | ) | |||||||||||||||||||||||||||||||
Add: |
||||||||||||||||||||||||||||||||||||||||||||
Provision/(benefit) for taxes |
1,727 | 4,538 | 6,444 | 14 | 6,005 | (478 | ) | |||||||||||||||||||||||||||||||||||||
Portion of rents representative of an interest factor |
159 | 169 | 145 | 146 | 137 | 13 | ||||||||||||||||||||||||||||||||||||||
Interest expense on all indebtedness |
7,982 | 6,806 | 6,500 | 31,357 | 41,981 | 1,002 | ||||||||||||||||||||||||||||||||||||||
Pre-tax earnings/(loss), as adjusted |
$ | 14,310 | $ | 19,867 | $ | 26,474 | $ | 33,839 | $ | 59,722 | $ | (243 | ) | |||||||||||||||||||||||||||||||
Fixed charges 1: |
||||||||||||||||||||||||||||||||||||||||||||
Portion of rents representative of an interest factor |
$ | 159 | $ | 169 | $ | 145 | $ | 146 | $ | 137 | $ | 13 | ||||||||||||||||||||||||||||||||
Interest expense on all indebtedness |
7,987 | 6,810 | 6,570 | 31,444 | 42,051 | 1,008 | ||||||||||||||||||||||||||||||||||||||
Total fixed charges |
$ | 8,146 | $ | 6,979 | $ | 6,715 | $ | 31,590 | $ | 42,188 | $ | 1,021 | ||||||||||||||||||||||||||||||||
Preferred stock dividend requirements |
2,683 | 989 | 1,767 | 283 | 291 | 400 | ||||||||||||||||||||||||||||||||||||||
Total combined fixed charges and preferred stock dividends |
$ | 10,829 | $ | 7,968 | $ | 8,482 | $ | 31,873 | $ | 42,479 | $ | 1,421 | ||||||||||||||||||||||||||||||||
Ratio of earnings to fixed charges |
1.76 | x | 2.85 | x | 3.94 | x | 1.07 | x | 1.42 | x | N/A | 2 | ||||||||||||||||||||||||||||||||
Ratio of earnings to combined fixed charges and preferred stock dividends |
1.32 | x | 2.49 | x | 3.12 | x | 1.06 | x | 1.41 | x | N/A | 2 |
1. | Fixed charges include capitalized interest of $5 million, $4 million, $70 million, $87 million, $70 million and $6 million for the years ended December 2011, December 2010, December 2009, November 2008, November 2007 and one month ended December 2008, respectively. |
2. | Earnings for the one month ended December 2008 were inadequate to cover total fixed charges and total combined fixed charges and preferred stock dividends. The coverage deficiencies for total fixed charges and total combined fixed charges and preferred stock dividends were $1.26 billion and $1.66 billion, respectively. |
EXHIBIT 21.1
Significant Subsidiaries of the Registrant
The following are significant subsidiaries of The Goldman Sachs Group, Inc. as of December 31, 2011 and the states or jurisdictions in which they are organized. Indentation indicates the principal parent of each subsidiary. The Goldman Sachs Group, Inc. owns, directly or indirectly, at least 99% of the voting securities of substantially all of the subsidiaries included below. The names of particular subsidiaries have been omitted because, considered in the aggregate as a single subsidiary, they would not constitute, as of the end of the year covered by this report, a significant subsidiary as that term is defined in Rule 1-02(w) of Regulation S-X under the Securities Exchange Act of 1934.
Name | State or Jurisdiction of Organization of Entity | ||||
The Goldman Sachs Group, Inc. |
Delaware | ||||
Goldman, Sachs & Co. |
New York | ||||
Goldman Sachs (UK) L.L.C. |
Delaware | ||||
Goldman Sachs Group Holdings (U.K.) |
United Kingdom | ||||
Goldman Sachs International Bank |
United Kingdom | ||||
Goldman Sachs Holdings (U.K.) |
United Kingdom | ||||
Goldman Sachs International |
United Kingdom | ||||
Goldman Sachs Asset Management International |
United Kingdom | ||||
Shire UK Limited |
United Kingdom | ||||
KPL Finance Limited |
Cayman Islands | ||||
GS Financial Services L.P. (Del) |
Delaware | ||||
JLQ LLC |
Cayman Islands | ||||
Jupiter Investment Co., Ltd. |
Japan | ||||
Goldman Sachs Global Holdings L.L.C. |
Delaware | ||||
GS Asian Venture (Delaware) L.L.C. |
Delaware | ||||
Triumph II Investments (Ireland) Limited |
Ireland | ||||
GS Diversified Funding LLC |
Delaware | ||||
Panda Investments Ltd |
Mauritius | ||||
GS (Asia) L.P. |
Delaware | ||||
Goldman Sachs (Japan) Ltd. |
British Virgin Islands | ||||
Goldman Sachs Japan Co., Ltd. |
Japan | ||||
J. Aron Holdings, L.P. |
Delaware | ||||
J. Aron & Company |
New York | ||||
Horizon Fundo De Investimento Multimercado Credito Privado - Investimento No Exterior |
Brazil | ||||
Goldman Sachs Asset Management, L.P. |
Delaware | ||||
Goldman Sachs Hedge Fund Strategies LLC |
Delaware | ||||
Goldman Sachs (Cayman) Holding Company |
Cayman Islands | ||||
Goldman Sachs (Cayman) Trust, Limited |
Cayman Islands | ||||
Goldman Sachs (Asia) Corporate Holdings L.P. |
Delaware | ||||
Goldman Sachs Holdings (Hong Kong) Limited |
Hong Kong | ||||
Goldman Sachs (Asia) Finance |
Mauritius | ||||
Goldman Sachs (Asia) LLC |
Delaware | ||||
Goldman Sachs (Asia) Securities Limited |
Hong Kong | ||||
Goldman Sachs Financial Markets, L.P. |
Delaware | ||||
MTGLQ Investors, L.P. |
Delaware | ||||
ELQ Investors, Ltd |
United Kingdom | ||||
GS European Opportunities Fund B.V. |
Netherlands | ||||
GS European Strategic Investment Group B.V. |
Netherlands | ||||
Opal Resources LLC |
Delaware | ||||
GS Mehetia LLC |
Delaware | ||||
Mehetia Holdings Inc. |
Delaware | ||||
GS Lending Partners Holdings LLC |
Delaware | ||||
Goldman Sachs Lending Partners LLC |
Delaware | ||||
Goldman Sachs Bank USA |
New York | ||||
Goldman Sachs Mortgage Company |
New York | ||||
GSCP (DEL) Inc. |
Delaware | ||||
Goldman Sachs Credit Partners L.P. |
Bermuda | ||||
GSTM LLC |
Delaware | ||||
SLK LLC |
New York | ||||
Goldman Sachs Execution & Clearing, L.P. |
New York | ||||
GS Financial Services II, LLC |
Delaware | ||||
GS Funding Europe |
United Kingdom | ||||
GS Funding Europe I Ltd. |
Cayman Islands |
Name | State or Jurisdiction of Organization of Entity | ||||
GS Funding Europe II Ltd. |
Cayman Islands | ||||
GS Investment Strategies, LLC |
Delaware | ||||
GSEM (Del) Inc. |
Delaware | ||||
GSEM (Del) Holdings, L.P. |
Delaware | ||||
GSEM Bermuda Holdings, L.P. |
Bermuda | ||||
GSEM (Del) LLC |
Delaware | ||||
GS Equity Markets, L.P. |
Bermuda | ||||
GSIP Holdco A LLC |
Delaware | ||||
Special Situations Investing Group, Inc. |
Delaware | ||||
GS Mortgage Derivatives, Inc. |
Delaware | ||||
GS Direct, L.L.C. |
Delaware | ||||
Commonwealth Annuity and Life Insurance Company |
Massachusetts | ||||
First Allmerica Financial Life Insurance Company |
Massachusetts | ||||
Goldman Sachs Specialty Lending Holdings, Inc. II |
Delaware | ||||
Goldman Sachs Specialty Lending CLO-I, Ltd. |
Cayman Islands | ||||
GS Power Holdings LLC |
Delaware | ||||
Natural Resources Investments S.L. |
Spain | ||||
Comercializadora Internacional Colombian Natural Resources I S.A.S. |
Colombia | ||||
Mitsi Holdings LLC |
Delaware | ||||
Metro International Trade Services LLC |
Delaware | ||||
MLQ Investors, L.P. |
Delaware | ||||
AR Holdings (Delaware) L.L.C. |
Delaware | ||||
AR Holdings GK |
Japan | ||||
GK Kagurazaka Holdings |
Japan | ||||
GK Arisugawa Finance |
Japan | ||||
K.K. Minato Saiken Kaishu |
Japan | ||||
GS PIA Holdings GK |
Japan | ||||
Crane Holdings Ltd. |
Japan | ||||
Goldman Sachs Realty Japan Ltd. |
Japan | ||||
Goldman Sachs Ireland Group Holdings LLC |
Delaware | ||||
Goldman Sachs Ireland LLC |
Delaware | ||||
Goldman Sachs Ireland Group Limited |
Ireland | ||||
Goldman Sachs Ireland Holdings Limited |
Ireland | ||||
Goldman Sachs Bank (Europe) plc |
Ireland | ||||
Rothesay Life, L.L.C. |
Delaware | ||||
Rothesay Life (Cayman) Limited |
Cayman Islands | ||||
Rothesay Life Limited |
United Kingdom | ||||
ELQ Holdings (Del) LLC |
Delaware | ||||
ELQ Holdings (UK) Ltd |
United Kingdom | ||||
ELQ Investors II Ltd |
United Kingdom | ||||
Goldman Sachs Specialty Lending Holdings, Inc. |
Delaware | ||||
Goldman Sachs Holdings ANZ Pty Limited |
Australia | ||||
GS HLDGS ANZ II Pty Ltd |
Australia | ||||
Goldman Sachs Australia Group Holdings Pty Ltd |
Australia | ||||
Goldman Sachs Australia Pty Ltd |
Australia | ||||
Archon International Inc. |
Delaware | ||||
Archon Group Deutschland GMBH |
Germany | ||||
Goldman Sachs Private Equity Group Master Fund I, LLC |
Delaware |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (File Nos. 333-159143 and 333-176914) and on Form S-8 (File Nos. 333-80839, 333-42068, 333-106430 and 333-120802) of The Goldman Sachs Group, Inc. of our report dated February 28, 2012 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Part II, Item 8 of this Form 10-K. We also consent to the incorporation by reference in such Registration Statements of our report dated February 28, 2012 relating to Selected Financial Data, which appears in Exhibit 99.1 of this Form 10-K.
/s/ PRICEWATERHOUSECOOPERS LLP
New York, New York
February 28, 2012
EXHIBIT 31.1
CERTIFICATIONS
I, Lloyd C. Blankfein, certify that:
1. I have reviewed this Annual Report on Form 10-K for the year ended December 31, 2011 of The Goldman Sachs Group, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
/s/ Lloyd C. Blankfein |
||
Name: Lloyd C. Blankfein |
||
Title: Chief Executive Officer |
Date: February 28, 2012
CERTIFICATIONS
I, David A. Viniar, certify that:
1. I have reviewed this Annual Report on Form 10-K for the year ended December 31, 2011 of The Goldman Sachs Group, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
/s/ David A. Viniar |
||
Name: David A. Viniar |
||
Title: Chief Financial Officer |
Date: February 28, 2012
EXHIBIT 32.1
Certification
Pursuant to 18 U.S.C. § 1350, the undersigned officer of The Goldman Sachs Group, Inc. (the Company) hereby certifies that the Companys Annual Report on Form 10-K for the year ended December 31, 2011 (the Report) fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934 and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: February 28, 2012 |
/s/ Lloyd C. Blankfein |
|||
Lloyd C. Blankfein |
||||
Chief Executive Officer |
The foregoing certification is being furnished solely pursuant to 18 U.S.C. § 1350 and is not being filed as part of the Report or as a separate disclosure document.
Certification
Pursuant to 18 U.S.C. § 1350, the undersigned officer of The Goldman Sachs Group, Inc. (the Company) hereby certifies that the Companys Annual Report on Form 10-K for the year ended December 31, 2011 (the Report) fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934 and that the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: February 28, 2012 |
/s/ David A. Viniar |
|||
David A. Viniar |
||||
Chief Financial Officer |
The foregoing certification is being furnished solely pursuant to 18 U.S.C. § 1350 and is not being filed as part of the Report or as a separate disclosure document.
EXHIBIT 99.1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
ON SELECTED FINANCIAL DATA
To the Board of Directors and the Shareholders of
The Goldman Sachs Group, Inc.:
We have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements of The Goldman Sachs Group, Inc. and subsidiaries (the Company) at December 31, 2011 and 2010, and for each of the three years in the period ended December 31, 2011, and the effectiveness of the Companys internal control over financial reporting as of December 31, 2011, and in our report dated February 28, 2012, we expressed unqualified opinions thereon. We have also previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Companys consolidated statements of financial condition at December 31, 2009, November 28, 2008 and November 30, 2007, and the related consolidated statements of earnings, changes in shareholders equity, cash flows and comprehensive income for the years ended November 28, 2008 and November 30, 2007 (none of which are presented herein), and we expressed unqualified opinions on those consolidated financial statements. In our opinion, the information set forth in the selected financial data for the fiscal years ended December 31, 2011, December 31, 2010, December 31, 2009, November 28, 2008 and November 30, 2007 and the income statement data and common share data for the one-month period ended December 26, 2008 appearing on page 215 in Part II, Item 8 of this Form 10-K, is fairly stated, in all material respects, in relation to the consolidated financial statements from which it has been derived.
/s/ PRICEWATERHOUSECOOPERS LLP
New York, New York
February 28, 2012
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