Exhibit 4.4
SUPPLEMENTAL REGISTRATION RIGHTS INSTRUMENT
SUPPLEMENTAL REGISTRATION RIGHTS INSTRUMENT, dated as of _________ ,
2001 (the "Supplemental Instrument").
WHEREAS, The Goldman Sachs Group, Inc., a Delaware corporation (the
"Company"), has entered into a Registration Rights Instrument, dated as of
December 10, 1999 (the "Registration Rights Instrument") (attached as Annex A
hereto);
WHEREAS, pursuant to Section 1 of the Registration Rights
Instrument, the Company has determined to register under the Securities Act of
1933 (the "Securities Act") the Designated Stock (as defined below) for resale
by the Charities (as defined below); and
WHEREAS, pursuant to Section 1 of the Registration Rights
Instrument, the Company has notified each person or entity listed in Schedule I
hereto (each, a "Donor") of such determination, and each Donor has requested
that the Company include such Donor's Designated Stock in the Registration
Statement (as defined below);
NOW THEREFORE, the Company undertakes as follows:
1. Definitions.
-----------
(a) Unless otherwise defined herein, all capitalized and undefined terms
shall have the meanings assigned to them in the Registration Rights Instrument.
(b) The following terms shall have the following meanings for the
purposes of both this Supplemental Instrument and the Registration Rights
Instrument:
"Charities" means collectively the public charities and private
foundations listed in Schedule II hereto. For the purposes of the Registration
Rights Instrument, the Charities shall be deemed to be the Participating
Holders.
"Designated Stock" means the shares of Common Stock listed next to
each Charity in Schedule II hereto. For the purposes of the Registration Rights
Instrument, the Designated Stock shall be deemed to be the Participating Stock,
subject to such stock ceasing to be Participating Stock pursuant to the last
sentence of Section 1(a) of the Registration Rights Instrument.
"Registration Statement" means, for the purposes of both this
Supplemental Instrument and the Registration Rights Instrument, the Company's
Registration Statement on Form S-3 (File No. 333-_____) registering the
Designated Stock for resale by the Charities.
"Request Registration" means, for the purposes of both this
Supplemental Instrument and the Registration Rights Instrument, the registration
of Common Stock for resale by the Charities and the distribution of the
Designated Stock by the Charities pursuant to the Registration Statement.
2. Charities. The Charities will be entitled to receive the benefits of and
will be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of the Registration Rights Instrument as supplemented,
modified and superseded by this Supplemental Instrument.
3. Supplements and Modifications. With respect to the Request Registration
contemplated by this Supplemental Instrument, the Registration Rights Instrument
is hereby supplemented, modified and superseded as follows:
(a) Notwithstanding Sections 1(b)(ii) and 1(e)(i) of the Registration
Rights Instrument, the Company shall not withdraw the Registration Statement
after the Registration Statement has been declared effective by the SEC;
provided, however, that the Company may withdraw the Registration Statement at
any time on or after the earliest date on which each share of Designated Stock
has either (i) ceased to be Participating Stock or (ii) become eligible for
resale pursuant to Rule 144(k) under the Securities Act.
(b) Pursuant to Section 1(c) of the Registration Rights Instrument, the
Company hereby determines that the Charities may distribute the Designated Stock
in any manner contemplated by the Registration Statement; provided, however,
that any firm commitment underwriting will need to be approved by the Company in
the manner contemplated by Sections 1(c) and 1(f) of the Registration Rights
Instrument, although no Charity, unless and until it agrees otherwise, will be
obligated to participate in any such underwriting.
(c) Notwithstanding Section 1(e)(ii) of the Registration Rights
Instrument, and subject to the issuance of any notice by the Company in
accordance with Section 1(e)(v) of the Registration Rights Instrument, the
Company shall use all reasonable efforts to keep the Registration Statement
effective until the earliest date on which each share of Designated Stock has
either (i) ceased to be Participating Stock or (ii) become eligible for resale
pursuant to Rule 144(k) under the Securities Act.
(d) The expense reimbursement provisions of Section 2 of the
Registration Rights Instrument shall apply to the distribution of the Designated
Stock in the manner
-2-
contemplated by the Registration Statement; provided, however, that the Company
will not pay the fees and expenses of counsel to the Charities.
(e) The indemnification and contribution provisions of Section 3 of the
Registration Rights Instrument shall apply to the distribution of the Designated
Stock in the manner contemplated by the Registration Statement; provided,
however, that the Company shall not require that any Charity provide the
undertaking referred to in Section 3(b) of the Registration Rights Instrument
and no Charity shall be deemed to be an "indemnifying party" for any purpose
under the Registration Rights Instrument; provided further, however, that, in
the case of a firm commitment underwriting, the Company may modify the
indemnification and contribution provisions of Section 3 of the Registration
Rights Instrument in any manner it deems appropriate.
(f) Notwithstanding the provisions of Section 8 of the Registration
Rights Instrument, the Company shall not amend the Registration Rights
Instrument or this Supplemental Instrument in any manner that would cause the
Designated Stock not to qualify as "qualified appreciated stock" within the
meaning of Section 170(e)(5)(B) of the Internal Revenue Code of 1986, as
amended. Moreover, the Registration Rights Instrument and this Supplemental
Instrument shall be interpreted in a manner consistent with the treatment of the
Designated Stock as "qualified appreciated stock".
(g) Section 3(a) of the Registration Rights Instrument is hereby amended
and supplemented by adding the words "preliminary prospectus or" immediately
after the word "or" and immediately prior to the word "Prospectus" in the first
proviso thereto.
(h) Section 3(b) of the Registration Rights Instrument is hereby amended
and supplemented by adding the words "preliminary prospectus or" immediately
after the word "any" and immediately prior to the word "Prospectus" in clause
(i) thereof.
4. Application of Registration Rights Instrument. Except as supplemented,
modified and superseded by this Supplemental Instrument, the Registration Rights
Instrument shall apply to the registration and distribution of the Designated
Stock in the manner contemplated by the Registration Statement, and each
Charity, by agreeing in advance that any Designated Stock donated to it will be
covered by the Registration Statement, shall be deemed to have agreed to
undertake the obligations of a Participating Holder under the Registration
Rights Instrument, as so supplemented, modified and superseded.
-3-
IN WITNESS WHEREOF, the Company has executed and delivered this
Supplemental Instrument as of the date above written.
THE GOLDMAN SACHS GROUP, INC.
By:__________________________________
Name:
Title: Authorized Person
-4-