$35,000,000,000 | ||||
The Goldman Sachs Group, Inc. |
Debt Securities Warrants Purchase Contracts Units Preferred Stock Depositary Shares of The Goldman Sachs Group, Inc. | Capital Securities of Goldman Sachs Capital II Goldman Sachs Capital III Goldman Sachs Capital IV Goldman Sachs Capital V Goldman Sachs Capital VI Fully and unconditionally guaranteed as described herein by The Goldman Sachs Group, Inc. |
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Available Information | 2 | |||
Prospectus Summary | 4 | |||
Ratio of Earnings to Fixed Charges | 8 | |||
Use of Proceeds | 8 | |||
Description of Debt Securities We May Offer | 9 | |||
Description of Warrants We May Offer | 31 | |||
Description of Purchase Contracts We May Offer | 48 | |||
Description of Units We May Offer | 53 | |||
Description of Preferred Stock We May Offer | 58 | |||
The Issuer Trusts | 66 | |||
Description of Capital Securities and Related Instruments | 69 | |||
Description of Capital Stock of The Goldman Sachs Group, Inc. | 93 | |||
Legal Ownership and Book-Entry Issuance | 98 | |||
Considerations Relating to Securities Issued in Bearer Form | 104 | |||
Considerations Relating to Indexed Securities | 109 | |||
Considerations Relating to Securities Denominated or Payable in or Linked to a Non-U.S. Dollar Currency | 112 | |||
Considerations Relating to Capital Securities | 115 | |||
United States Taxation | 118 | |||
Plan of Distribution | 142 | |||
Employee Retirement Income Security Act | 145 | |||
Validity of the Securities | 145 | |||
Experts | 145 | |||
Cautionary Statement Pursuant to the Private Securities Litigation Reform Act of 1995 | 146 |
(1) | Annual Report on Form 10-K for the fiscal year ended November 26, 2004 (File No. 001-14965); | |
(2) | The description of common stock contained in the Registration Statement on Form 8-A, dated April 27, 1999 (File No. 001-14965), of The Goldman Sachs Group, Inc., filed with the SEC under Section 12(b) of the Securities Exchange Act of 1934; and | |
(3) | All documents filed by The Goldman Sachs Group, Inc. under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 on or after the date of this prospectus and before the termination of this offering. |
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• | debt securities; | |
• | warrants; | |
• | purchase contracts; | |
• | units, comprised of two or more debt securities, warrants, purchase contracts and capital securities, in any combination; and | |
• | preferred stock, either directly or represented by depositary shares. |
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• | warrants to purchase our debt securities; and | |
• | warrants to purchase or sell, or whose cash value is determined by reference to the performance, level or value of, one or more of the following: |
— | securities of one or more issuers,including our common or preferred stock or other securities described in this prospectus or debt or equity securities of third parties; | |
— | one or more currencies; | |
— | one or more commodities; | |
— | any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance; and | |
— | one or more indices or baskets of the items described above. |
• | securities of one or more issuers, including our common or preferred stock or other securities described in this prospectus and debt or equity securities of third parties; | |
• | one or more currencies; | |
• | one or more commodities; | |
• | any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance; and | |
• | one or more indices or baskets of the items described above. |
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Year Ended November | ||||||||||||||||||||
2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||||||||
Ratio of Earnings to Fixed Charges (unaudited)(1) | 1.74x | 1.57x | 1.36x | 1.24x | 1.30x |
(1) | For purposes of the ratio of earnings to fixed charges, “earnings” represent pre-tax earnings plus fixed charges and “fixed charges” represent interest expense plus that portion of rent expense that, in our opinion, approximates the interest factor included in rent expense. |
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Please note that in this section entitled “Description of Debt Securities We May Offer”, references to The Goldman Sachs Group, Inc., “we”, “our” and “us” refer only to The Goldman Sachs Group, Inc. and not to its consolidated subsidiaries. Also, in this section, references to “holders” mean those who own debt securities registered in their own names, on the books that we or the trustee maintain for this purpose, and not those who own beneficial interests in debt securities registered in street name or in debt securities issued in book-entry form through one or more depositaries. Owners of beneficial interests in the debt securities should read the section below entitled “Legal Ownership and Book-Entry Issuance”. |
• | First, the trustee can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, which we describe later under “— Default, Remedies and Waiver of Default”. | |
• | Second, the trustee performs administrative duties for us, such as sending you interest payments and notices. |
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• | securities of one or more issuers; | |
• | one or more currencies; |
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• | one or more commodities; | |
• | any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance; and/or | |
• | one or more indices or baskets of the items described above. |
• | whether it is a senior debt security or a subordinated debt security; | |
• | any limit on the total principal amount of the debt securities of the same series; | |
• | the stated maturity; | |
• | the specified currency or currencies for principal and interest, if not U.S. dollars; | |
• | the price at which we originally issue your debt security, expressed as a percentage of the principal amount, and the original issue date; | |
• | whether your debt security is a fixed rate debt security, a floating rate debt security or an indexed debt security; |
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• | if your debt security is a fixed rate debt security, the yearly rate at which your debt security will bear interest, if any, and the interest payment dates; | |
• | if your debt security is a floating rate debt security, the interest rate basis; any applicable index currency or maturity, spread or spread multiplier or initial, maximum or minimum rate; the interest reset, determination, calculation and payment dates; the day count used to calculate interest payments for any period; and the calculation agent; | |
• | if your debt security is an indexed debt security, the principal amount, if any, we will pay you at maturity, the amount of interest, if any, we will pay you on an interest payment date or the formula we will use to calculate these amounts, if any, and the terms on which your debt security will be exchangeable for or payable in cash, securities or other property; | |
• | if your debt security may be converted into or exercised or exchanged for common or preferred stock or other securities of The Goldman Sachs Group, Inc. or debt or equity securities of one or more third parties, the terms on which conversion, exercise or exchange may occur, including whether conversion, exercise or exchange is mandatory, at the option of the holder or at our option, the period during which conversion, exercise or exchange may occur, the initial conversion, exercise or exchange price or rate and the circumstances or manner in which the amount of common or preferred stock or other securities issuable upon conversion, exercise or exchange may be adjusted; | |
• | if your debt security is also an original issue discount debt security, the yield to maturity; | |
• | if applicable, the circumstances under which your debt security may be redeemed at our option or repaid at the holder’s option before the stated maturity, including any redemption commencement date, repayment date(s), redemption price(s) and redemption period(s); | |
• | the authorized denominations, if other than $1,000 and integral multiples of $1,000; | |
• | the depositary for your debt security, if other than DTC, and any circumstances under which the holder may request securities in non-global form, if we choose not to issue your debt security in book-entry form only; | |
• | if your debt security will be issued in bearer form, any special provisions relating to bearer securities that are not addressed in this prospectus; | |
• | if applicable, the circumstances under which we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes and under which we can redeem the debt securities if we have to pay additional amounts; | |
• | the names and duties of any co-trustees, depositaries, authenticating agents, paying agents, transfer agents or registrars for your debt security; and | |
• | any other terms of your debt security, which could be different from those described in this prospectus. |
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• | If the successor entity in the transaction is not The Goldman Sachs Group, Inc., the successor entity must be organized as a corporation, partnership or trust and must expressly assume our obligations under the debt securities of that series and the indenture with respect to that series. The successor entity may be organized under the laws of any jurisdiction, whether in the United States or elsewhere. | |
• | Immediately after the transaction, no default under the debt securities of that series has occurred and is continuing. For this purpose, “default under the debt securities of that series” means an event of default with respect to that series or any event that would be an event of default with respect to that series if the requirements for giving us default notice and for our default having to continue for a specific period of time were disregarded. We describe these matters below under “— Default, Remedies and Waiver of Default”. |
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• | in the event of any insolvency or bankruptcy proceedings, or any receivership, liquidation, reorganization, assignment for creditors or other similar proceedings or events involving us or our assets; | |
• | (a) in the event and during the continuation of any default in the payment of principal, premium or interest on any senior indebtedness beyond any applicable grace period or (b) in the event that any event of default with respect to any senior indebtedness has occurred and is continuing, permitting the holders of that senior indebtedness (or a trustee) to accelerate the maturity of that senior indebtedness, whether or not the maturity is in fact accelerated (unless, in the case of (a) or (b), the payment default or event of default has been cured or waived or ceased to exist and any related acceleration has been rescinded) or (c) in the event that any judicial proceeding is pending with respect to a payment default or event of default described in (a) or (b); or | |
• | in the event that any subordinated debt securities have been declared due and payable before their stated maturity. |
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• | We must deposit in trust for the benefit of all holders of those debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on those debt securities on their various due dates; | |
• | There must be a change in current U.S. federal tax law or an Internal Revenue Service ruling that lets us make the above deposit without causing the holders to be taxed on those debt securities any differently than if we did not make the deposit and just repaid those debt securities ourselves. Under current federal tax law, the deposit and our legal release from your debt security would be treated as though we took back your debt security and gave you your share of the cash and notes or bonds deposited in trust. In that event, you could recognize gain or loss on your debt security; | |
• | We must deliver to the trustee a legal opinion of our counsel confirming the tax law change described above; and | |
• | In the case of the subordinated debt securities, the following requirements must also be met: |
— | No event or condition may exist that, under the provisions described above under “— Subordination Provisions” above, would prevent us from making payments of principal, premium or interest on those subordinated debt securities on the date of the deposit referred to above or during the 90 days after that date; and | |
— | We must deliver to the trustee an opinion of counsel to the effect that (a) the trust funds will not be subject to any rights of holders of senior indebtedness and (b) after the 90-day period referred to above, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, except that if a court were to rule under any of those laws in any case or proceeding that the trust funds remained our property, then the relevant trustee and the holders of the subordinated debt securities would be entitled to some enumerated rights as secured creditors in the trust funds. |
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• | We must deposit in trust for the benefit of the holders of those debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on those debt securities on their various due dates; and | |
• | We must deliver to the trustee a legal opinion of our counsel confirming that under current U.S. federal income tax law we may make the above deposit without causing the holders to be taxed on those debt securities any differently than if we did not make the deposit and just repaid those debt securities ourselves. |
• | If your debt security is a senior debt security, our promise not to create liens on our voting or profit participating equity ownership interests in Goldman, Sachs & Co. described above under “— Restriction on Liens”; | |
• | Any additional covenants that your prospectus supplement may state are applicable to your debt security; and | |
• | The events of default resulting from a breach of covenants, described below in the fourth bullet point under “— Default, Remedies and Waiver of Default — Events of Default”. |
• | We do not pay the principal or any premium on any debt security of that series on the due date; | |
• | We do not pay interest on any debt security of that series within 30 days after the due date; |
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• | We do not deposit a sinking fund payment with regard to any debt security of that series on the due date, but only if the payment is required under provisions described in the applicable prospectus supplement; | |
• | We remain in breach of our covenant described above under “— Restriction on Liens”, in the case of any series of senior debt securities, or any other covenant we make in the indenture for the benefit of the relevant series, for 60 days after we receive a notice of default stating that we are in breach and requiring us to remedy the breach. The notice must be sent by the trustee or the holders of at least 10% in principal amount of the relevant series of debt securities; | |
• | We file for bankruptcy or other events of bankruptcy, insolvency or reorganization relating to The Goldman Sachs Group, Inc. occur. Those events must arise under U.S. federal or state law, unless we merge, consolidate or sell our assets as described above and the successor firm is a non-U.S. entity. If that happens, then those events must arise under U.S. federal or state law or the law of the jurisdiction in which the successor firm is legally organized; or | |
• | If the applicable prospectus supplement states that any additional event of default applies to the series, that event of default occurs. |
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• | The holder of your debt security must give the trustee written notice that an event of default has occurred, and the event of default must not have been cured or waived; | |
• | The holders of not less than 25% in principal amount of all debt securities of your series must make a written request that the trustee take action because of the default, and they or other holders must offer to the trustee indemnity reasonably satisfactory to the trustee against the cost and other liabilities of taking that action; | |
• | The trustee must not have taken action for 60 days after the above steps have been taken; and | |
• | During those 60 days, the holders of a majority in principal amount of the debt securities of your series must not have given the trustee directions that are inconsistent with the written request of the holders of not less than 25% in principal amount of the debt securities of your series. |
Book-entry and other indirect owners should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to declare or cancel an acceleration of the maturity. Book-entry and other indirect owners are described below under “Legal Ownership and Book-Entry Issuance”. |
• | change the stated maturity for any principal or interest payment on a debt security; | |
• | reduce the principal amount, the amount payable on acceleration of the maturity after a default, the interest rate or the redemption price for a debt security; |
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• | permit redemption of a debt security if not previously permitted; | |
• | impair any right a holder may have to require repayment of its debt security; | |
• | impair any right that a holder of an indexed or any other debt security may have to exchange or convert the debt security for or into securities or other property; | |
• | change the currency of any payment on a debt security; | |
• | change the place of payment on a debt security; | |
• | impair a holder’s right to sue for payment of any amount due on its debt security; | |
• | reduce the percentage in principal amount of the debt securities of any one or more affected series, taken separately or together, as applicable, the approval of whose holders is needed to change the indenture or those debt securities; | |
• | reduce the percentage in principal amount of the debt securities of any one or more affected series, taken separately or together, as applicable, the consent of whose holders is needed to waive our compliance with the applicable indenture or to waive defaults; and | |
• | change the provisions of the applicable indenture dealing with modification and waiver in any other respect, except to increase any required percentage referred to above or to add to the provisions that cannot be changed or waived without approval of the holder of each affected debt security. |
• | If the change affects only the debt securities of a particular series, it must be approved by the holders of a majority in principal amount of the debt securities of that series. |
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• | If the change affects the debt securities of more than one series of debt securities issued under the applicable indenture, it must be approved by the holders of a majority in principal amount of all series affected by the change, with the debt securities of all the affected series voting together as one class for this purpose (and of any affected series that by its terms is entitled to vote separately as a series, as described below). |
• | if it has been surrendered for cancellation; | |
• | if we have deposited or set aside, in trust for its holder, money for its payment or redemption; | |
• | if we have fully defeased it as described above under “— Defeasance and Covenant Defeasance — Full Defeasance”; or | |
• | if we or one of our affiliates, such as Goldman, Sachs & Co., is the owner. |
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• | For an original issue discount debt security, we will use the principal amount that would be due and payable on the action date if the maturity of the debt security were accelerated to that date because of a default; | |
• | For a debt security whose principal amount is not known, we will use any amount that we indicate in the prospectus supplement for that debt security. The principal amount of a debt security may not be known, for example, because it is based on an index that changes from time to time and the principal amount is not to be determined until a later date; or | |
• | For debt securities with a principal amount denominated in one or more non-U.S. dollar currencies or currency units, we will use the U.S. dollar equivalent, which we will determine. |
• | only in fully registered form; | |
• | without interest coupons; and | |
• | unless we indicate otherwise in your prospectus supplement, in denominations of $1,000 and integral multiples of $1,000. |
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• | for all debt securities, is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York City generally are authorized or obligated by law or executive order to close and that satisfies any other criteria specified in your prospectus supplement; | |
• | if the debt security is a floating rate debt security whose interest rate is based on LIBOR, is also a day on which dealings in the relevant index currency specified in the applicable prospectus supplement are transacted in the London interbank market; | |
• | if the debt security has a specified currency other than U.S. dollars or euros, is also a day on which banking institutions are not authorized or obligated by law, regulation or executive order to close in the principal financial center of the country issuing the specified currency; | |
• | if the debt security either is a floating rate debt security whose interest rate is based on EURIBOR or has a specified currency of euros, is also a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System, or any successor system, is open for business; | |
• | if the debt security is held through Euroclear, is also not a day on which banking institutions in Brussels, Belgium are generally authorized or obligated by law, regulation or executive order to close; and | |
• | if the debt security is held through Clearstream, is also not a day on which banking institutions in Luxembourg are generally authorized or obligated by law, regulation or executive order to close. |
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Payments on Non-Global Debt Securities. Except as described in the last paragraph under this heading, we will make payments on debt securities in non-global form in the applicable specified currency. We will make these payments by wire transfer of immediately available funds to any account that is maintained in the applicable specified currency at a bank designated by the holder and is acceptable to us and the trustee. To designate an account for wire payment, the holder must give the paying agent appropriate wire instructions at least five business days before the requested wire payment is due. In the case of any interest payment due on an interest payment date, the instructions must be given by the person or entity who is the holder on the regular record date. In the case of any other payment, the payment will be made only after the debt security is surrendered to the paying agent. Any instructions, once properly given, will remain in effect unless and until new instructions are properly given in the manner described above.
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• | securities of one or more issuers, including our common or preferred stock or other securities described in this prospectus or debt or equity securities of third parties; |
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• | one or more currencies; | |
• | one or more commodities; | |
• | any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance; and | |
• | one or more indices or baskets of the items described above. |
• | the warrant property; | |
• | the cash value of the warrant property; or | |
• | the cash value of the warrants determined by reference to the performance, level or value of the warrant property. |
• | the specific designation and aggregate number of, and the price at which we will issue, the warrants; | |
• | the currency with which the warrants may be purchased; | |
• | the indenture or warrant agreement under which we will issue the warrants; | |
• | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; | |
• | whether the warrants will be issued in fully registered form or bearer form, in global or non-global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any debt security or purchase contract included in that unit; | |
• | the identities of the trustee or warrant agent, any depositaries and any paying, transfer, calculation or other agents for the warrants; | |
• | any securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be listed; | |
• | whether the warrants are to be sold separately or with other securities, as part of units or otherwise; and | |
• | any other terms of the warrants. |
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• | the designation, aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the debt warrants; | |
• | the exercise price and whether the exercise price may be paid in cash, by the exchange of any debt warrants or other securities or both and the method of exercising the debt warrants; and | |
• | the designation, terms and amount of debt securities, if any, to be issued together with each of the debt warrants and the date, if any, after which the debt warrants and debt securities will be separately transferable. |
• | whether the universal warrants are put warrants or call warrants, including in either case warrants that may be settled by means of net cash settlement or cashless exercise, or any other type of warrants; | |
• | the money or warrant property, and the amount or method of determining the amount of money or warrant property, payable or deliverable upon exercise of each universal warrant; | |
• | the price at which and the currency with which the warrant property may be purchased or sold by or on behalf of the holder of each universal warrant upon the exercise of that warrant, or the method of determining that price; | |
• | whether the exercise price may be paid in cash, by the exchange of any universal warrants or other securities or both, and the method of exercising the universal warrants; and |
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• | whether the exercise of the universal warrants is to be settled in cash or by delivery of the warrant property or both and whether settlement will occur on a net basis or a gross basis. |
• | First, the trustee can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, which we describe later under “— Default, Remedies and Waiver of Default”. | |
• | Second, the trustee performs administrative duties for us, such as sending you payments and notices. |
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• | If the successor entity in the transaction is not The Goldman Sachs Group, Inc., the successor entity must be organized as a corporation, partnership or trust and must expressly assume our obligations under that warrant and the indenture. The successor entity may be organized under the laws of any jurisdiction, whether in the United States or elsewhere. | |
• | Immediately after the transaction, no default under the warrant has occurred and is continuing. For this purpose, “default under the warrant” means an event of default with respect to that warrant or any event that would be an event of default with respect to that warrant if the requirements for giving us default notice and for our default having to continue for a specific period of time were disregarded. We describe these matters below under “— Default, Remedies and Waiver of Default”. |
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• | We do not pay any money or deliver any warrant property with respect to that warrant on the payment or settlement date in accordance with the terms of that warrant; | |
• | We remain in breach of our covenant described above under “— Restriction on Liens”, or any other covenant we make in the indenture for the benefit of the holder of that warrant for 60 days after we receive a notice of default stating that we are in breach and requiring us to remedy the breach. The notice must be sent by the trustee or the holders of at least 10% in number of the relevant series of warrants; | |
• | We file for bankruptcy or other events of bankruptcy, insolvency or reorganization relating to The Goldman Sachs Group, Inc. occur. Those events must arise under U.S. federal or state law, unless we merge, consolidate or sell our assets as described above and the successor firm is a non-U.S. entity. If that happens, then those events must arise under U.S. federal or state law or the law of the jurisdiction in which the successor firm is legally organized; or | |
• | If the applicable prospectus supplement states that any additional event of default applies to the series, that event of default occurs. |
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• | The holder of your warrant must give the trustee written notice that an event of default has occurred, and the event of default must not have been cured or waived; | |
• | The holders of not less than 25% in number of all warrants of your series must make a written request that the trustee take action because of the default, and they or other holders must offer to the trustee indemnity reasonably satisfactory to the trustee against the cost and other liabilities of taking that action; | |
• | The trustee must not have taken action for 60 days after the above steps have been taken; and | |
• | During those 60 days, the holders of a majority in number of the warrants of your series must not have given the trustee directions that are inconsistent with the written request of the holders of not less than 25% in number of the warrants of your series. |
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• | change the exercise price of the warrant; | |
• | change the terms of any warrant with respect to the payment or settlement date of the warrant; | |
• | reduce the amount of money payable or reduce the amount or change the kind of warrant property deliverable upon the exercise of the warrant or any premium payable upon redemption of the warrant; | |
• | change the currency of any payment on a warrant; | |
• | change the place of payment on a warrant; | |
• | permit redemption of a warrant if not previously permitted; | |
• | impair a holder’s right to exercise its warrant, or sue for payment of any money payable or delivery of any warrant property deliverable with respect to its warrant on or after the payment or settlement date or, in the case of redemption, the redemption date; | |
• | if any warrant provides that the holder may require us to repurchase the warrant, impair the holder’s right to require repurchase of the warrant; | |
• | reduce the percentage in number of the warrants of any one or more affected series, taken separately or together, as applicable, the approval of whose holders is needed to change the indenture or those warrants; | |
• | reduce the percentage in number of the warrants of any one or more affected series, taken separately or together, as applicable, the consent of whose holders is needed to waive our compliance with the indenture or to waive defaults; and | |
• | change the provisions of the indenture dealing with modification and waiver in any other respect, except to increase any required percentage referred to above or to add to the provisions that cannot be changed or waived without approval of the holder of each affected warrant. |
• | If the change affects only the warrants of a particular series, it must be approved by the holders of a majority in number of the warrants of that series. |
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• | If the change affects the warrants of more than one series issued under the indenture, it must be approved by the holders of a majority in number of all series affected by the change, with the warrants of all the affected series voting together as one class for this purpose. |
• | if it has been surrendered for cancellation; | |
• | if it has been called for redemption; | |
• | if we have deposited or set aside, in trust for its holder, money or warrant property for its payment or settlement; or | |
• | if we or one of our affiliates, such as Goldman, Sachs & Co., is the owner. |
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• | only in fully registered form; and | |
• | only in the denominations specified in your prospectus supplement. |
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• | Payments on Global Warrants. We will make payments on a global warrant in accordance with the applicable policies of the depositary as in effect from time to time. Under those policies, we will pay directly to the depositary, or its nominee, and not to any indirect owners who own beneficial interests in the global warrant. An indirect owner’s right to receive those payments will be governed by the rules and practices of the depositary and its participants, as described in the section entitled “Legal Ownership and Book-Entry Issuance — What Is a Global Security?”. | |
• | Payments on Non-Global Warrants. We will make payments on a warrant in non-global, registered form as follows. We will make all payments by check at the paying agent described below, against surrender of the warrant. All payments by check will be made in next-day funds — i.e., funds that become available on the day after the check is cashed. |
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• | for all warrants, is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York City are authorized or obligated by law or executive order to close and that satisfies any other criteria specified in your prospectus supplement; | |
• | if the warrant has a specified currency other than U.S. dollars or euros, is also a day on which banking institutions are not authorized or obligated by law, regulation or executive order to close in the principal financial center of the country issuing the specified currency; | |
• | if the warrant is held through Euroclear, is also not a day on which banking institutions in Brussels, Belgium are generally authorized or obligated by law, regulation or executive order to close; and | |
• | if the warrant is held through Clearstream, is also not a day on which banking institutions in Luxembourg are generally authorized or obligated by law, regulation or executive order to close. |
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• | to cure any ambiguity; | |
• | to cure, correct or supplement any defective or inconsistent provision; or | |
• | to make any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in any material respect. |
• | change the exercise price of the warrant; | |
• | change the kind or reduce the amount of the warrant property or other consideration receivable upon exercise, cancellation or expiration of the warrant; | |
• | shorten, advance or defer the period of time during which the holder may exercise the warrant or otherwise impair the holder’s right to exercise the warrant; or | |
• | reduce the percentage of outstanding, unexpired warrants of any series or class the consent of whose holders is required to amend the series or class, or the applicable warrant agreement with regard to that series or class, as described below. |
• | If the change affects only the warrants of a particular series issued under that agreement, the change must be approved by the holders of a majority of the outstanding, unexpired warrants of that series. |
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• | If the change affects the warrants of more than one series issued under that agreement, the change must be approved by the holders of a majority of all outstanding, unexpired warrants of all series affected by the change, with the warrants of all the affected series voting together as one class for this purpose. |
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• | securities of one or more issuers, including our common or preferred stock or other securities described in this prospectus or debt or equity securities of third parties; | |
• | one or more currencies; | |
• | one or more commodities; | |
• | any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance; and | |
• | one or more indices or baskets of the items described above. |
• | the holder to purchase or sell, and obligate us to sell or purchase, on specified dates, one or more purchase contract properties at a specified price or prices; or | |
• | the holder or us to settle the purchase contract by reference to the value, performance or level of one or more purchase contract properties, on specified dates and at a specified price or prices. |
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• | whether the purchase contract obligates the holder to purchase or sell, or both purchase and sell, one or more purchase contract properties and the nature and amount of each of those properties, or the method of determining those amounts; | |
• | whether the purchase contract is to be prepaid or not and the governing document for the contract; | |
• | whether the purchase contract is to be settled by delivery, or by reference or linkage to the value, performance or level of, the purchase contract properties; | |
• | any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contract; | |
• | whether the purchase contract will be issued as part of a unit and, if so, the other securities comprising the unit and whether any unit securities will be subject to a security interest in our favor as described below; and | |
• | whether the purchase contract will be issued in fully registered or bearer form and in global or non-global form. |
• | any other securities included in the unit, if the purchase contract is part of a unit, or any other property specified in the applicable prospectus supplement; | |
• | all additions to and substitutions for the pledged items; |
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• | all income, proceeds and collections received in respect of the pledged items; and | |
• | all powers and rights owned or acquired later with respect to the pledged items. |
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• | The purchase contracts will be issued in fully registered form in denominations stated in the applicable prospectus supplement. Holders may exchange their purchase contracts for contracts of smaller denominations or combined into fewer contracts of larger denominations, as long as the total amount is not changed. | |
• | Holders may exchange or transfer their purchase contracts at the office of the trustee, unit agent or other agent we name in the applicable prospectus supplement. Holders may also replace lost, stolen, destroyed or mutilated purchase contracts at that office. We may appoint another entity to perform these functions or perform them ourselves. | |
• | Holders will not be required to pay a service charge to transfer or exchange their purchase contracts, but they may be required to pay for any tax or other governmental charge associated with the transfer or exchange. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may also require an indemnity before replacing any purchase contracts. | |
• | If we have the right to redeem, accelerate or settle any purchase contracts before their maturity, and we exercise our right as to less than all those purchase contracts, we may block the transfer or exchange of those purchase contracts during the period beginning 15 days before the day we mail the notice of exercise and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any purchase contract selected for early settlement, except that we will continue to permit transfers and exchanges of the unsettled portion of any purchase contract being partially settled. |
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Please note that in this section entitled “Description of Units We May Offer”, references to The Goldman Sachs Group, Inc., “we”, “our” and “us” refer only to The Goldman Sachs Group, Inc. and not to its consolidated subsidiaries. Also, in this section, references to “holders” mean those who own units registered in their own names, on the books that we or our agent maintain for this purpose, and not those who own beneficial interests in units registered in street name or in units issued in book-entry form through one or more depositaries. Owners of beneficial interests in the units should read the section below entitled “Legal Ownership and Book-Entry Issuance”. |
• | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; | |
• | any provisions of the governing unit agreement that differ from those described below; and | |
• | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
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• | to cure any ambiguity; | |
• | to correct or supplement any defective or inconsistent provision; or | |
• | to make any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in any material respect. |
• | impair any right of the holder to exercise or enforce any right under a security included in the unit if the terms of that security require the consent of the holder to any changes that would impair the exercise or enforcement of that right; | |
• | impair the right of the holder to purchase or sell, as the case may be, the purchase contract property under any non-prepaid purchase contract issued under the unit agreement, or to require delivery of or payment for that property when due; or | |
• | reduce the percentage of outstanding units of any series or class the consent of whose holders is required to amend that series or class, or the applicable unit agreement with respect to that series or class, as described below. |
• | If the change affects only the units of a particular series issued under that agreement, the change must be approved by the holders of a majority of the outstanding units of that series. | |
• | If the change affects the units of more than one series issued under that agreement, it must be approved by the holders of a majority of all outstanding units of all series affected by the change, with the units of all the affected series voting together as one class for this purpose. |
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• | be bound by the terms of each non-prepaid purchase contract included in the holder’s units and by the terms of the unit agreement with respect to those contracts; and | |
• | appoint the unit agent as its authorized agent to execute, deliver and perform on the holder’s behalf each non-prepaid purchase contract included in the holder’s units. |
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• | Holders may exchange or transfer their units at the office of the unit agent. Holders may also replace lost, stolen, destroyed or mutilated units at that office. We may appoint another entity to perform these functions or perform them ourselves. | |
• | Holders will not be required to pay a service charge to transfer or exchange their units, but they may be required to pay for any tax or other governmental charge associated with the transfer or exchange. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may also require an indemnity before replacing any units. | |
• | If we have the right to redeem, accelerate or settle any units before their maturity, and we exercise our right as to less than all those units or other securities, we may block the exchange or transfer of those units during the period beginning 15 days before the day we mail the notice of exercise and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any unit selected for early settlement, except that we will continue to permit transfers and exchanges of the unsettled portion of any unit being partially settled. We may also block the transfer or exchange of any unit in this manner if the unit includes securities that are or may be selected for early settlement. |
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• | dividend rights; | |
• | conversion or exchange rights; | |
• | voting rights; | |
• | redemption rights and terms; | |
• | liquidation preferences; | |
• | sinking fund provisions; | |
• | the serial designation of the series; and | |
• | the number of shares constituting the series. |
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• | as stated in the applicable prospectus supplement and in the certificate of designations establishing the series; or | |
• | as required by applicable law. |
• | The Goldman Sachs Group, Inc.; | |
• | a bank or other financial institution selected by us and named in the applicable prospectus supplement, as preferred stock depositary; and | |
• | the holders from time to time of depositary receipts issued under that depositary agreement. |
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• | all outstanding depositary shares have been redeemed or converted or exchanged for any other securities into which they or the underlying preferred stock are convertible or exchangeable; or | |
• | a final distribution in respect of the preferred stock has been made to the holders of depositary shares in connection with any liquidation, dissolution or winding up of The Goldman Sachs Group, Inc. |
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• | the capital securities to be issued by each Issuer Trust; | |
• | the subordinated debt securities to be issued by us to each Issuer Trust, and the subordinated debt indenture under which they will be issued; | |
• | our guarantees for the benefit of the holders of the capital securities; and | |
• | the relationship among the capital securities, the corresponding subordinated debt securities, the expense agreements and the guarantees. |
• | a trust agreement executed by us, as depositor of the Issuer Trust, and the Delaware trustee of such Issuer Trust; and | |
• | a certificate of trust filed with the Delaware Secretary of State. |
• | issuing and selling its trust securities; | |
• | using the proceeds from the sale of these trust securities to acquire corresponding subordinated debt securities from us; and | |
• | engaging in only those other activities necessary or incidental to these purposes (for example, registering the transfer of the trust securities). |
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• | each Issuer Trust will have a term of approximately 31 years from the date it issues its trust securities, but may terminate earlier as provided in the applicable trust agreement; | |
• | each Issuer Trust’s business and affairs will be conducted by its trustees; | |
• | the trustees will be appointed by us as holder of the trust common securities; | |
• | the trustees for each Issuer Trust will be The Bank of New York, as property trustee, and The Bank of New York (Delaware), as Delaware trustee, and two individual administrative trustees who are employees or officers of The Goldman Sachs Group, Inc. or an affiliate of ours. These trustees are also referred to as the “Issuer Trust trustees”. The Bank of New York, as property trustee, will act as sole indenture trustee under each trust agreement for purposes of compliance with the Trust Indenture Act. The Bank of New York will also act as trustee under the guarantees and the subordinated debt indenture. See “Description of Capital Securities and Related Instruments — Guarantees and Expense Agreements” and “Description of Capital Securities and Related Instruments — Corresponding Subordinated Debt Securities”; |
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• | if an event of default under the trust agreement for an Issuer Trust has occurred and is continuing, the holders of a majority in liquidation amount of the related capital securities will be entitled to appoint, remove or replace the property trustee and/or the Delaware trustee for such Issuer Trust; | |
• | under all circumstances, only the holder of the trust common securities has the right to vote to appoint, remove or replace the administrative trustees; | |
• | the duties and obligations of each Issuer Trust trustee are governed by the applicable trust agreement; and | |
• | we will pay all fees and expenses related to each Issuer Trust and the offering of the capital securities and will pay, directly or indirectly, all ongoing costs, expenses and liabilities of each Issuer Trust. |
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• | on or after such date as may be specified in the applicable prospectus supplement, in whole at any time or in part from time to time; | |
• | at any time, in whole (but not in part), upon the occurrence of a tax event or an investment company event (as defined below); or | |
• | as may be otherwise specified in the applicable prospectus supplement. |
• | the Issuer Trust is, or will be within 90 days after the date of the opinion of counsel, subject to U.S. federal income tax on income received or accrued on the corresponding subordinated debt securities; | |
• | interest payable by us on the corresponding subordinated debt securities is not, or within 90 days after the opinion of counsel will not be, deductible by us, in whole or in part, for U.S. federal income tax purposes; or | |
• | the Issuer Trust is, or will be within 90 days after the date of the opinion of counsel, subject to more than a de minimis amount of other taxes, duties or other governmental charges. |
• | any amendment to or change (including any announced prospective change) in the laws or any regulations under the laws of the United States or of any political subdivision or taxing authority of or in the United States, if the amendment or change is effective on or after the date the capital securities are issued; or | |
• | any official administrative pronouncement, including any private letter ruling, technical advice memorandum, field service advice, regulatory procedure, notice or announcement (including any notice or announcement of intent to adopt any procedures or regulations) or action or any judicial decision interpreting or applying such laws or regulations, whether or not the pronouncement, action or decision is issued to or in connection with a proceeding involving us or the Issuer Trust or is subject to review or appeal, if the pronouncement, action or decision is announced or occurs on or after the date of the issuance of the capital securities. |
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• | the series of related capital securities will no longer be deemed to be outstanding; | |
• | the depositary or its nominee, as the record holder of the related capital securities, will receive a registered global certificate or certificates representing the corresponding subordinated debt securities to be delivered upon the distribution; and | |
• | any certificates representing the related capital securities not held by the depositary or its nominee will be deemed to represent the corresponding subordinated debt securities having a principal amount equal to the stated liquidation amount of the related capital securities, and bearing accrued and unpaid interest in an amount equal to the accrued and unpaid distributions on the related capital securities until the certificates are presented to the administrative trustees or their agent for transfer or reassurance. |
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• | the expiration of its term; | |
• | certain events of bankruptcy, dissolution or liquidation of the holder of its trust common securities; | |
• | the distribution of a like amount of the corresponding subordinated debt securities to the holders of its trust securities, if we have given written direction to the property trustee to terminate the Issuer Trust. Such written direction by us is optional and solely within our discretion; | |
• | redemption of all of such Issuer Trust’s capital securities as described under “— Redemption or Exchange — Mandatory Redemption”; and | |
• | the entry of an order for the dissolution of such Issuer Trust by a court of competent jurisdiction. |
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• | any event of default under the subordinated debt indenture with respect to the corresponding subordinated debt securities has occurred and is continuing (see “Description of Debt Securities We May Offer — Default, Remedies and Waiver of Default — Events of Default”); | |
• | default for 30 days by the Issuer Trust in the payment of any distribution on any capital security of such series or any common trust security of the Issuer Trust; | |
• | default by the Issuer Trust in the payment of the redemption price of any capital security of such series or any common trust security of such Issuer Trust; | |
• | failure by the Issuer Trust trustees to perform any other covenant or warranty in the trust agreement for 60 days after the holders of at least 25% in aggregate liquidation amount of the outstanding capital securities of such series give written notice to us and the Issuer Trust trustees; or | |
• | bankruptcy, insolvency or reorganization of the property trustee and the failure by us to appoint a successor property trustee within 90 days. |
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• | the successor entity either: |
• | expressly assumes all of the obligations of the Issuer Trust with respect to its outstanding capital securities; or |
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• | substitutes for the outstanding capital securities of the Issuer Trust other securities having substantially the same terms as the capital securities (referred to as the “successor securities”) so long as the successor securities rank the same as the capital securities in priority with respect to distributions and payments upon liquidation, redemption and otherwise; |
• | we expressly appoint a trustee of the successor entity possessing the same powers and duties as property trustee as the holder of the corresponding subordinated debt securities; | |
• | the merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the outstanding capital securities of the Issuer Trust to be downgraded by any nationally recognized statistical rating organization which assigns ratings to the capital securities; | |
• | the merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the holders of the outstanding capital securities of the Issuer Trust (including any successor securities) in any material respect (other than in connection with any distribution of the holders’ interests in the successor entity). | |
• | the successor entity has a purpose substantially identical to that of the Issuer Trust; | |
• | prior to the merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, we have received an opinion from counsel to the Issuer Trust to the effect that: |
• | the merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the holders of the outstanding capital securities of the Issuer Trust (including any successor securities) in any material respect; and | |
• | following the merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Issuer Trust nor the successor entity will be required to register as an investment company under the Investment Company Act of 1940; and |
• | we or any permitted successor or assignee owns all of the trust common securities of the successor entity and guarantees the obligations of the successor entity under the successor securities at least to the extent provided by the related guarantee. |
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• | to cure any ambiguity, correct or supplement any provisions in the trust agreement that may be inconsistent with any other provision, or to make any other provisions with respect to matters or questions arising under the trust agreement, which will not be inconsistent with the other provisions of the trust agreement; or | |
• | to modify, eliminate or add to any provisions of the trust agreement as necessary to ensure that the relevant Issuer Trust: |
• | will be classified for U.S. federal income tax purposes as a grantor trust or as other than an association taxable as a corporation at all times that any trust securities are outstanding; | |
• | will not be required to register as an “investment company” under the Investment Company Act; or | |
• | for any other particular reason that may be specified in the applicable prospectus supplement; |
• | no such amendment will adversely affect in any material respect the rights of the holders of the outstanding capital securities issued under the trust agreement; and | |
• | any such amendment will become effective when notice of the amendment is given to the holders of trust securities issued under the trust agreement. |
• | the consent of holders representing at least a majority (based upon liquidation amounts) of the outstanding capital securities issued under the trust agreement (voting together as a single class); and | |
• | receipt by the Issuer Trust trustees of an opinion of counsel to the effect that the amendment or the exercise of any power granted to the Issuer Trust trustees in accordance with the amendment will not cause the Issuer Trust to be taxable as a corporation or affect the Issuer Trust’s status as a grantor trust for U.S. federal income tax purposes or the Issuer Trust’s exemption from status as an “investment company” under the Investment Company Act, |
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• | reduce the amount or change the timing of any distribution on the capital security required to be made as of a specified due date; or | |
• | restrict the right of the holder of the capital security to institute suit for the enforcement of any such payment on or after such date. |
• | direct the time, method and place of conducting any proceeding for any remedy available to the subordinated debt trustee, or executing any trust or power conferred on the property trustee with respect to the corresponding subordinated debt securities; | |
• | waive any past default with respect to the corresponding subordinated debt securities that is waivable under the subordinated debt indenture; | |
• | exercise any right to rescind or annul a declaration that the principal of all the corresponding subordinated debt securities will be due and payable; or | |
• | consent to any modification or termination of the corresponding subordinated debt securities or the subordinated debt indenture with respect to those debt securities, where this consent is required, without, in each case, obtaining the prior approval of the holders of a majority in aggregate liquidation amount of all outstanding capital securities of the Issuer Trust (voting together as a single class); |
• | the Issuer Trust will not be classified as an association taxable as a corporation for U.S. federal income tax purposes on account of the action; and | |
• | the action would not cause the Issuer Trust to be classified as other than a grantor trust for U.S. federal income tax purposes. |
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• | the Issuer Trust of the related series of trust securities is the holder of all the corresponding subordinated debt securities; | |
• | a tax event in respect of such Issuer Trust has occurred and is continuing; | |
• | no event of default under the subordinated debt indenture has occurred and is continuing; and | |
• | we do not elect to redeem the related capital securities; |
• | to maintain directly or indirectly 100% ownership of the trust common securities of the Issuer Trust to which the corresponding subordinated debt securities have been issued, provided that certain successors which are permitted under the subordinated debt indenture may succeed to our ownership of the trust common securities; | |
• | not to voluntarily terminate, wind up or liquidate any Issuer Trust, except: |
• | in connection with a distribution of corresponding subordinated debt securities to the holders of the capital securities in exchange for their capital securities upon liquidation of the Issuer Trust (which we may effect in our discretion); or | |
• | in connection with certain mergers, consolidations or amalgamations permitted by the related trust agreement; and |
• | to use our reasonable efforts, consistent with the terms and provisions of the related trust agreement, to cause the Issuer Trust to be classified as a grantor trust and not as an association taxable as a corporation for U.S. federal income tax purposes. |
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• | declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of our capital stock; or | |
• | make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any of our debt securities that rank on a parity in all respects with or junior in interest in all respects to the corresponding subordinated debt securities; | |
• | make any guarantee payments with respect to any guarantee by us of debt securities of any of our subsidiaries that rank on a parity in all respects with or junior in interest in all respects to the corresponding subordinated debt securities; |
• | repurchases, redemptions or other acquisitions of shares of our capital stock in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of our capital stock (or securities convertible into or exercisable for our capital stock) as consideration in an acquisition transaction entered into prior to the applicable extension period; | |
• | as a result of any exchange or conversion of any class or series of our capital stock (or any capital stock of a subsidiary of ours) for any class or series of our capital stock or of any class or series of our indebtedness for any class or series of our capital stock; | |
• | the purchase of fractional interests in shares of our capital stock in accordance with the conversion or exchange provisions of such capital stock or the security being converted or exchanged; | |
• | any declaration of a dividend in connection with any stockholders’ rights plan, or the issuance of rights, stock or other property under any stockholders’ rights plan, or the redemption or repurchase of rights in accordance with any stockholders’ rights plan; | |
• | any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of the warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks on a parity with or junior to such stock; or | |
• | any payments under any guarantees relating to any capital securities. |
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• | no modification may be made that adversely affects the holders of such series of capital securities in any material respect, and no termination of the subordinated debt indenture may occur, and no waiver of any event of default under the subordinated debt indenture with respect to such series of capital securities may be effective, without the prior consent of the holders of at least a majority of the aggregate liquidation amount of all outstanding capital securities of such series affected, unless and until the principal of the corresponding subordinated debt securities and all accrued and unpaid interest have been paid in full and certain other conditions have been satisfied, and | |
• | where a consent under the subordinated debt indenture would require the consent of each holder of a series of corresponding subordinated debt securities, no such consent will be given by the property trustee without the prior consent of each holder of capital securities of the related series affected. |
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• | any accumulated and unpaid distributions required to be paid on the capital securities, to the extent that the Issuer Trust has funds legally and immediately available to pay them; | |
• | any redemption price required to be paid on the capital securities, to the extent that the Issuer Trust has funds legally and immediately available to pay it; and | |
• | upon a voluntary or involuntary termination, winding up or liquidation of the Issuer Trust (unless the corresponding subordinated debt securities are distributed to holders of such capital securities in exchange for their capital securities), the lesser of: |
• | the liquidation distribution for the capital securities; and | |
• | the amount of assets of the Issuer Trust remaining available for distribution to holders of capital securities after satisfaction of liabilities to creditors of the Issuer Trust as required by applicable law. |
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• | the guarantee payments having been paid in full by us, the trust or both; or | |
• | the distribution of corresponding subordinated debt securities to the holders of the related capital securities in exchange for their capital securities. |
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• | the aggregate principal amount of each series of corresponding subordinated debt securities will be equal to the sum of the aggregate stated liquidation amount of the related capital securities and related trust common securities; | |
• | the interest rate and interest and other payment dates on each series of corresponding subordinated debt securities will match the distribution rate and distribution and other payment dates for the related capital securities; | |
• | we will pay, under the related expense agreement, for all and any costs, expenses and liabilities of the Issuer Trust except the Issuer Trust’s obligations to holders of its capital securities under the capital securities; and | |
• | each trust agreement provides that the Issuer Trust will not engage in any activity that is inconsistent with the limited purposes of such Issuer Trust. |
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• | 150,000,000 shares are designated as preferred stock, none of which are outstanding; | |
• | 4,000,000,000 shares are designated as common stock, 482,303,971 shares of which were outstanding as of January 28, 2005; and | |
• | 200,000,000 shares are designated as nonvoting common stock, none of which are outstanding. |
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• | it is announced by Goldman Sachs that a person or group has become the beneficial owner of 15% or more of the outstanding common stock (other than persons deemed to beneficially own common stock solely because they are parties to the shareholders’ agreement, members of the shareholders’ committee or certain other persons) (an “acquiring person”); or | |
• | ten business days (or such later date as our board of directors may fix by resolution) after the date a person or group commences a tender or exchange offer that would result in such person or group becoming an acquiring person. |
• | Goldman Sachs is involved in a merger or similar form of business combination and (i) any term of the transaction provides for different treatment of the shares of capital stock held by the acquiring person as compared to the shares of capital stock held by all other shareholders or (ii) the person with whom such transaction occurs is the acquiring person or an affiliate thereof; or | |
• | Goldman Sachs sells or transfers assets representing more than 50% of its assets or generating more than 50% of its operating income or cash flow to any person other than Goldman Sachs or its wholly owned subsidiaries, |
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• | causing Goldman Sachs to register with the SEC for resale shares of common stock held by our directors, employees and former directors and employees and our subsidiaries and affiliates and former partners and employees of The Goldman Sachs Group, L.P. and its subsidiaries and affiliates; and | |
• | making payments to, and other arrangements with, certain former limited partners of Goldman Sachs, including managing directors who were profit participating limited partners, in order to compensate them for, or to prevent, significantly disproportionate adverse tax or other consequences arising out of our incorporation. |
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• | prior to the stockholder becoming an interested stockholder, the board of directors of Goldman Sachs must have previously approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; | |
• | on consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of Goldman Sachs outstanding at the time the transaction commenced, excluding, for purposes of determining the number of shares outstanding, shares owned by persons who are directors and officers; or | |
• | the business combination is approved by the board of directors of Goldman Sachs and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least 662/3% of the outstanding voting stock which is not owned by the interested stockholder. |
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• | how it handles securities payments and notices; | |
• | whether it imposes fees or charges; | |
• | whether and how you can instruct it to exercise any rights to purchase or sell warrant property under a warrant or purchase contract property under a purchase contract or to exchange or convert a security for or into other property; | |
• | how it would handle a request for the holders’ consent, if ever required; | |
• | whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; | |
• | how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and | |
• | if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
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• | The Depository Trust Company, New York, New York, which is known as “DTC”; | |
• | a financial institution holding the securities on behalf of Euroclear Bank S.A./ N.V., as operator of the Euroclear system, which is known as “Euroclear”; | |
• | a financial institution holding the securities on behalf of Clearstream Banking, société anonyme, Luxembourg, which is known as “Clearstream”; and | |
• | any other clearing system or financial institution named in the applicable prospectus supplement. |
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• | An investor cannot cause the securities to be registered in his or her own name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; | |
• | An investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above under “— Who Is the Legal Owner of a Registered Security?”; | |
• | An investor may not be able to sell interests in the securities to some insurance companies and other institutions that are required by law to own their securities in non-book-entry form; | |
• | An investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; | |
• | The depositary’s policies will govern payments, deliveries, transfers, exchanges, notices and other matters relating to an investor’s interest in a global security, and those policies may change from time to time. We, the Issuer Trusts, the trustee and any warrant agents and unit agents will have no responsibility for any aspect of the depositary’s policies, actions or records of ownership interests in a global security. We, the Issuer Trusts, the trustee and any warrant agents and unit agents also do not supervise the depositary in any way; | |
• | The depositary will require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds and your broker or bank may require you to do so as well; and | |
• | Financial institutions that participate in the depositary’s book-entry system and through which an investor holds its interest in the global securities, directly or indirectly, may also have their own policies affecting payments, deliveries, transfers, exchanges, notices and other matters relating to the securities, and those policies may change from time to time. For example, if you hold an interest in a global security through Euroclear or Clearstream, when DTC is the depositary, Euroclear or Clearstream, as applicable, will require those who purchase and sell interests in that security through them to use immediately available funds and comply with other policies and procedures, including deadlines for giving instructions as to transactions that are to be effected on a particular day. There may be more than one financial intermediary in the chain of ownership for an investor. We or the Issuer Trusts, as applicable, do not monitor and are not responsible for the policies or actions or records of ownership interests of any of those intermediaries. |
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• | if the depositary notifies us or the Issuer Trust that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 60 days; | |
• | if we or the Issuer Trust notify the trustee, warrant agent or unit agent, as applicable, that we or the Issuer Trust wish to terminate that global security; or | |
• | in the case of a global security representing debt securities or warrants issued under an indenture, if an event of default has occurred with regard to these debt securities and has not been cured or waived. |
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• | the date that is 40 days after the later of (a) the completion of the distribution of the securities as determined by the underwriter, dealer or agent and (b) the closing date for the sale of the securities by us; we may extend this date as described below under “— Extensions for Further Issuances”; and | |
• | the date on which Euroclear and Clearstream provide us or our agent with the necessary tax certificates described below under “— U.S. Tax Certificate Required”. |
• | non-global securities in bearer form with interest coupons attached, if applicable; or | |
• | non-global securities in registered form without coupons attached. |
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• | is not a United States person, as defined below under “— Limitations on Issuance of Bearer Securities”; | |
• | is a foreign branch of a United States financial institution purchasing for its own account or for resale, or is a United States person who acquired the security through a financial institution of this kind and who holds the security through that financial institution on the date of certification, provided in either case that the financial institution provides a certificate to us or the distributor selling the security to it stating that it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code and the U.S. Treasury Regulations under that Section; or | |
• | is a financial institution holding for purposes of resale during the “restricted period”, as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7). A financial institution of this kind, whether or not it is also described in either of the two preceding bullet points, must certify that it has not acquired the security for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions. |
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• | a citizen or resident of the United States; | |
• | a corporation or partnership, including an entity treated as a corporation or partnership for United States federal income tax purposes, created or organized in or under the laws of the United States, any state of the United States or the District of Columbia; | |
• | an estate the income of which is subject to United States federal income taxation regardless of its source; or | |
• | a trust if a court within the United States is able to exercise primary supervision of the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust. |
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• | any change in tax laws or regulations (or any official interpretation) that poses a substantial risk that the related capital securities might lose their special tax treatment; and | |
• | any change in laws or regulations (or any official interpretation) that poses a substantial risk that the relevant Issuer Trust is or will be considered an “investment company” that is required to be registered under the Investment Company Act. |
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• | a dealer in securities or currencies; | |
• | a trader in securities that elects to use a mark-to-market method of accounting for your securities holdings; | |
• | a bank; | |
• | an insurance company; | |
• | a thrift institution; | |
• | a regulated investment company; | |
• | a tax-exempt organization; | |
• | a person that owns debt securities that are a hedge or that are hedged against interest rate or currency risks; | |
• | a person that owns debt securities as part of a straddle or conversion transaction for tax purposes; or | |
• | a person whose functional currency for tax purposes is not the U.S. dollar. |
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• | a citizen or resident of the United States; | |
• | a domestic corporation; | |
• | an estate whose income is subject to United States federal income tax regardless of its source; or | |
• | a trust if a United States court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control all substantial decisions of the trust. |
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• | the amount of the principal payment made |
• | the stated principal amount of the debt security. |
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• | multiplying your original issue discount debt security’s adjusted issue price at the beginning of the accrual period by your debt security’s yield to maturity; and then | |
• | subtracting from this figure the sum of the payments of qualified stated interest on your debt security allocable to the accrual period. |
• | adding your original issue discount debt security’s issue price and any accrued original issue discount for each prior accrual period; and then | |
• | subtracting any payments previously made on your original issue discount debt security that were not qualified stated interest payments. |
• | the amount payable at the maturity of your debt security, other than any payment of qualified stated interest; and | |
• | your debt security’s adjusted issue price as of the beginning of the final accrual period. |
• | the excess of your adjusted basis in the debt security immediately after purchase over the adjusted issue price of the debt security |
• | the excess of the sum of all amounts payable, other than qualified stated interest, on the debt security after the purchase date over the debt security’s adjusted issue price. |
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• | a portion of the initial purchase price of your debt security is attributable to pre-issuance accrued interest; | |
• | the first stated interest payment on your debt security is to be made within one year of your debt security’s issue date; and | |
• | the payment will equal or exceed the amount of pre-issuance accrued interest. |
• | the timing and amounts of the payments that comprise each payment schedule are known as of the issue date; and | |
• | one of such schedules is significantly more likely than not to occur. |
• | in the case of an option or options that we may exercise, we will be deemed to exercise or not exercise an option or combination of options in the manner that minimizes the yield on your debt security; and | |
• | in the case of an option or options that you may exercise, you will be deemed to exercise or not exercise an option or combination of options in the manner that maximizes the yield on your debt security. |
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• | the issue price of your debt security will equal your cost; | |
• | the issue date of your debt security will be the date you acquired it; and | |
• | no payments on your debt security will be treated as payments of qualified stated interest. |
• | your debt security’s issue price does not exceed the total noncontingent principal payments by more than the lesser of: |
1. | .015 multiplied by the product of the total noncontingent principal payments and the number of complete years to maturity from the issue date; or | |
2. | 15 percent of the total noncontingent principal payments; and |
• | your debt security provides for stated interest, compounded or paid at least annually, only at: |
1. | one or more qualified floating rates; | |
2. | a single fixed rate and one or more qualified floating rates; | |
3. | a single objective rate; or | |
4. | a single fixed rate and a single objective rate that is a qualified inverse floating rate. |
• | variations in the value of the rate can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in the currency in which your debt security is denominated; or | |
• | the rate is equal to such a rate multiplied by either: |
1. | a fixed multiple that is greater than 0.65 but not more than 1.35; or |
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2. | a fixed multiple greater than 0.65 but not more than 1.35, increased or decreased by a fixed rate; and |
• | the value of the rate on any date during the term of your debt security is set no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day. |
• | the rate is not a qualified floating rate; | |
• | the rate is determined using a single, fixed formula that is based on objective financial or economic information that is not within the control of or unique to the circumstances of the issuer or a related party; and | |
• | the value of the rate on any date during the term of your debt security is set no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day. |
• | the rate is equal to a fixed rate minus a qualified floating rate and | |
• | the variations in the rate can reasonably be expected to inversely reflect contemporaneous variations in the cost of newly borrowed funds. |
• | the fixed rate and the qualified floating rate or objective rate have values on the issue date of the debt security that do not differ by more than 0.25 percentage points; or | |
• | the value of the qualified floating rate or objective rate is intended to approximate the fixed rate. |
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• | determining a fixed rate substitute for each variable rate provided under your variable rate debt security; | |
• | constructing the equivalent fixed rate debt instrument, using the fixed rate substitute described above; | |
• | determining the amount of qualified stated interest and original issue discount with respect to the equivalent fixed rate debt instrument; and | |
• | adjusting for actual variable rates during the applicable accrual period. |
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• | you purchase your debt security for less than its issue price as determined above; and | |
• | the difference between the debt security’s stated redemption price at maturity or, in the case of an original issue discount debt security, the debt security’s revised issue price, and the price you paid for your debt security is equal to or greater than 0.25 percent of your debt security’s stated redemption price at maturity or revised issue price, respectively, multiplied by the number of complete years to the debt security’s maturity. To determine the revised issue price of your debt security for these purposes, you generally add any original issue discount that has accrued on your debt security to its issue price. |
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• | adding any original issue discount, market discount, de minimis original issue discount and de minimis market discount previously included in income with respect to your debt security; and then | |
• | subtracting any payments on your debt security that are not qualified stated interest payments and any amortizable bond premium applied to reduce interest on your debt security. |
• | described above under “— United States Holders — Original Issue Discount — Short-Term Debt Securities” or “— Market Discount”; | |
• | attributable to accrued but unpaid interest; | |
• | the rules governing contingent payment obligations apply; or | |
• | attributable to changes in exchange rates as described below. |
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• | a nonresident alien individual; | |
• | a foreign corporation; or | |
• | an estate or trust that in either case is not subject to United States federal income tax on a net income basis on income or gain from a debt security. |
• | we and other U.S. payors generally will not be required to deduct United States withholding tax from payments of principal, premium, if any, and interest, including original issue discount, to you if, in the case of payments of interest: |
1. | you do not actually or constructively own 10% or more of the total combined voting power of all classes of our stock entitled to vote; | |
2. | you are not a controlled foreign corporation that is related to us through stock ownership; | |
3. | you are not a bank receiving interest on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of your trade or business; | |
4. | in the case of a debt security other than a bearer debt security, the U.S. payor does not have actual knowledge or reason to know that you are a United States person and: |
a. | you have furnished to the U.S. payor an Internal Revenue Service Form W-8BEN or an acceptable substitute form upon which you certify, under penalties of perjury, that you are (or, in the case of a United States alien holder that is a partnership or an estate or trust, such forms certifying that each partner in the partnership or beneficiary of the estate or trust is) not a United States person; |
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b. | in the case of payments made outside the United States to you at an offshore account (generally, an account maintained by you at a bank or other financial institution at any location outside the United States), you have furnished to the U.S. payor documentation that establishes your identity and your status as the beneficial owner of the payment for United States federal income tax purposes and as a person who is not a United States person; |
c. | the U.S. payor has received a withholding certificate (furnished on an appropriate Internal Revenue Service Form W-8 or an acceptable substitute form) from a person claiming to be: |
i. | a withholding foreign partnership (generally a foreign partnership that has entered into an agreement with the Internal Revenue Service to assume primary withholding responsibility with respect to distributions and guaranteed payments it makes to its partners); | |
ii. | a qualified intermediary (generally a non-United States financial institution or clearing organization or a non-United States branch or office of a United States financial institution or clearing organization that is a party to a withholding agreement with the Internal Revenue Service); or | |
iii. | a U.S. branch of a non-United States bank or of a non-United States insurance company; and |
the withholding foreign partnership, qualified intermediary or U.S. branch has received documentation upon which it may rely to treat the payment as made to a person who is not a United States person that is, for United States federal income tax purposes, the beneficial owner of the payments on the debt securities in accordance with U.S. Treasury regulations (or, in the case of a qualified intermediary, in accordance with its agreement with the Internal Revenue Service); |
d. | the U.S. payor receives a statement from a securities clearing organization, bank or other financial institution that holds customers’ securities in the ordinary course of its trade or business: |
i. | certifying to the U.S. payor under penalties of perjury that an Internal Revenue Service Form W-8BEN or an acceptable substitute form has been received from you by it or by a similar financial institution between it and you; and | |
ii. | to which is attached a copy of the Internal Revenue Service Form W-8BEN or acceptable substitute form; or |
e. | the U.S. payor otherwise possesses documentation upon which it may rely to treat the payment as made to a person who is not a United States person that is, for United States federal income tax purposes, the beneficial owner of the payments on the debt securities in accordance with U.S. Treasury regulations; and |
5. | in the case of a bearer debt security, the debt security is offered, sold and delivered in compliance with the restrictions described above under “Considerations Relating to Securities Issued in Bearer Form” and payments on the debt security are made in accordance with the procedures described above under that section; and |
• | no deduction for any United States federal withholding tax will be made from any gain that you realize on the sale or exchange of your debt security or coupon. |
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• | the decedent did not actually or constructively own 10% or more of the total combined voting power of all classes of our stock entitled to vote at the time of death; and | |
• | the income on the debt security would not have been effectively connected with a U.S. trade or business of the decedent at the same time. |
• | the broker does not have actual knowledge or reason to know that you are a United States person and you have furnished to the broker: |
1. | an appropriate Internal Revenue Service Form W-8 or an acceptable substitute form upon which you certify, under penalties of perjury, that you are (or, in the case of a United States alien holder that is a partnership or an estate or trust, such forms certifying that each partner in the partnership or beneficiary of the estate or trust is) not a United States person; or |
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2. | other documentation upon which it may rely to treat the payment as made to a person who is not a United States person that is, for United States federal income tax purposes, the beneficial owner of the payment on the debt securities in accordance with U.S. Treasury regulations; or |
• | you otherwise establish an exemption. |
• | the proceeds are transferred to an account maintained by you in the United States; | |
• | the payment of proceeds or the confirmation of the sale is mailed to you at a United States address; or | |
• | the sale has some other specified connection with the United States as provided in U.S. Treasury regulations; |
• | a United States person; | |
• | a controlled foreign corporation for United States tax purposes; | |
• | a foreign person 50% or more of whose gross income is effectively connected with the conduct of a United States trade or business for a specified three-year period; or | |
• | a foreign partnership, if at any time during its tax year: |
1. | one or more of its partners are “U.S. persons”, as defined in U.S. Treasury regulations, who in the aggregate hold more than 50% of the income or capital interest in the partnership; or | |
2. | such foreign partnership is engaged in the conduct of a United States trade or business; |
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• | a citizen or resident of the United States; | |
• | a domestic corporation; | |
• | an estate whose income is subject to United States federal income tax regardless of its source; or | |
• | a trust if a United States court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control all substantial decisions of the trust. |
• | Section 246A of the Internal Revenue Code, which reduces the dividends-received deduction allowed to a corporate shareholder that has incurred indebtedness that is “directly attributable” to an investment in portfolio stock such as preferred stock; | |
• | Section 246(c) of the Internal Revenue Code, which, among other things, disallows the dividends-received deduction in respect of any dividend on a share of stock that is held for less than the minimum holding period (generally at least 46 days during the 90 day period |
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beginning on the date which is 45 days before the date on which such share becomes ex-dividend with respect to such dividend); and |
• | Section 1059 of the Internal Revenue Code, which, under certain circumstances, reduces the basis of stock for purposes of calculating gain or loss in a subsequent disposition by the portion of any “extraordinary dividend” (as defined below) that is eligible for the dividends-received deduction. |
• | equals or exceeds 5% of the corporate shareholder’s adjusted tax basis in the preferred stock, treating all dividends having ex-dividend dates within an 85 day period as one dividend; or | |
• | exceeds 20% of the corporate shareholder’s adjusted tax basis in the preferred stock, treating all dividends having ex-dividend dates within a 365 day period as one dividend. |
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• | results in a complete termination of your stock interest in us; | |
• | is substantially disproportionate with respect to you; or | |
• | is not essentially equivalent to a dividend with respect to you. |
• | a nonresident alien individual; | |
• | a foreign corporation; or | |
• | an estate or trust that in either case is not subject to United States federal income tax on a net income basis on income or gain from preferred stock. |
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• | a valid Internal Revenue Service Form W-8BEN or an acceptable substitute form upon which you certify, under penalties of perjury, your status as a person (or, in the case of a United States alien holder that is a partnership or an estate or trust, such forms certifying that each partner in the partnership or beneficiary of the estate or trust is) who is not a United States person and your entitlement to the lower treaty rate with respect to such payments; or | |
• | in the case of payments made outside the United States to an offshore account (generally, an account maintained by you at an office or branch of a bank or other financial institution at any location outside the United States), other documentary evidence establishing your entitlement to the lower treaty rate in accordance with U.S. Treasury regulations. |
• | you (or, in the case of a United States alien holder that is a partnership or an estate or trust, such forms certifying that each partner in the partnership or beneficiary of the estate or trust is) are not a United States person; and | |
• | the dividends are effectively connected with your conduct of a trade or business within the United States and are includible in your gross income. |
• | the gain is “effectively connected” with your conduct of a trade or business in the United States, and the gain is attributable to a permanent establishment that you maintain in the United States, if that is required by an applicable income tax treaty as a condition for subjecting you to United States taxation on a net income basis; | |
• | you are an individual, you hold the preferred stock as a capital asset, you are present in the United States for 183 or more days in the taxable year of the sale and certain other conditions exist; or | |
• | we are or have been a United States real property holding corporation for federal income tax purposes and you held, directly or indirectly, at any time during the five-year period ending on the date of disposition, more than 5% of your class of preferred stock and you are not eligible for any treaty exemption. |
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• | fail to provide an accurate taxpayer identification number; | |
• | are notified by the United States Internal Revenue Service that you have failed to report all interest or dividends required to be shown on your federal income tax returns; or | |
• | in certain circumstances, fail to comply with applicable certification requirements. |
• | a United States person; | |
• | a controlled foreign corporation for United States tax purposes; | |
• | a foreign person 50% or more of whose gross income is effectively connected with the conduct of a United States trade or business for a specified three-year period; or | |
• | a foreign partnership, if at any time during its tax year: |
1. | one or more of its partners are “U.S. persons”, as defined in U.S. Treasury regulations, who in the aggregate hold more than 50% of the income or capital interest in the partnership; or | |
2. | such foreign partnership is engaged in the conduct of a United States trade or business. |
• | dividend payments; and | |
• | the payment of the proceeds from the sale of preferred stock effected at a United States office of a broker; |
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• | the payor or broker does not have actual knowledge or reason to know that you are a United States person and you have furnished to the payor or broker: |
1. | a valid Internal Revenue Service Form W-8BEN or an acceptable substitute form upon which you certify, under penalties of perjury, that you (or, in the case of a United States alien holder that is a partnership or an estate or trust, such forms certifying that each partner in the partnership or beneficiary of the estate or trust is) are not a United States person; or | |
2. | other documentation upon which it may rely to treat the payments as made to a non-United States person that is, for United States federal income tax purposes, the beneficial owner of the payments in accordance with U.S. Treasury regulations; or |
• | you otherwise establish an exemption. |
• | the proceeds are transferred to an account maintained by you in the United States; | |
• | the payment of proceeds or the confirmation of the sale is mailed to you at a United States address; or | |
• | the sale has some other specified connection with the United States as provided in U.S. Treasury regulations; |
• | a United States person; | |
• | a controlled foreign corporation for United States tax purposes; | |
• | a foreign person 50% or more of whose gross income is effectively connected with the conduct of a United States trade or business for a specified three-year period; or | |
• | a foreign partnership, if at any time during its tax year: |
1. | one or more of its partners are “U.S. persons”, as defined in U.S. Treasury regulations, who in the aggregate hold more than 50% of the income or capital interest in the partnership; or | |
2. | such foreign partnership is engaged in the conduct of a United States trade or business; |
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• | a citizen or resident of the United States; | |
• | a domestic corporation; | |
• | an estate whose income is subject to U.S. federal income tax regardless of its source; or | |
• | a trust if a U.S. court can exercise primary supervision over the trust’s administration and one or more U.S. persons have authority to control all substantial decisions of the trust. |
• | are issued with more than a de minimis amount of original issue discount; | |
• | mature 1 year or less than or more than 30 years after the issue date; | |
• | are denominated or pay principal, premium, if any, or interest in a currency other than U.S. dollars; | |
• | pay principal, premium, if any, or interest based on an index or indices; | |
• | allow for deferral of interest for more than 5 years’ worth of consecutive interest periods; | |
• | are issued in bearer form; | |
• | contain any obligation or right of us or a holder to convert or exchange the subordinated debt securities into other securities or properties of Goldman Sachs; | |
• | contain any obligation or right of Goldman Sachs to redeem, purchase or repay the subordinated debt securities (other than a redemption of the outstanding subordinated debt securities at a price equal to (1) 100% of the principal amount of the subordinated debt securities being redeemed, plus (2) accrued but unpaid interest, plus, if applicable, (3) a premium or make-whole amount determined by a quotation agent, equal to the sum of the present value of scheduled payments of principal and interest from the issue date of the subordinated debt securities to their redemption date, discounted at a rate equal to a U.S. treasury rate plus some fixed amount or amounts); or | |
• | contain any other material provision described only in the prospectus supplement. |
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• | through agents; | |
• | to dealers or underwriters for resale; | |
• | directly to purchasers; or | |
• | through a combination of any of these methods of sale. |
• | at a fixed price or prices, which may be changed; | |
• | at market prices prevailing at the time of sale; | |
• | at prices related to prevailing market prices; or | |
• | at negotiated prices. |
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Available Information | 2 | |||
Prospectus Summary | 4 | |||
Ratio of Earnings to Fixed Charges | 8 | |||
Use of Proceeds | 8 | |||
Description of Debt Securities We May Offer | 9 | |||
Description of Warrants We May Offer | 31 | |||
Description of Purchase Contracts We May Offer | 48 | |||
Description of Units We May Offer | 53 | |||
Description of Preferred Stock We May Offer | 58 | |||
The Issuer Trusts | 66 | |||
Description of Capital Securities and Related Instruments | 69 | |||
Description of Capital Stock of The Goldman Sachs Group, Inc. | 93 | |||
Legal Ownership and Book-Entry Issuance | 98 | |||
Considerations Relating to Securities Issued in Bearer Form | 104 | |||
Considerations Relating to Indexed Securities | 109 | |||
Considerations Relating to Securities Denominated or Payable in or Linked to a Non-U.S. Dollar Currency | 112 | |||
Considerations Relating to Capital Securities | 115 | |||
United States Taxation | 118 | |||
Plan of Distribution | 142 | |||
Employee Retirement Income Security Act | 145 | |||
Validity of the Securities | 145 | |||
Experts | 145 | |||
Cautionary Statement Pursuant to the Private Securities Litigation Reform Act of 1995 | 146 |