Exhibit 5.1
[Letterhead of Sullivan & Cromwell LLP]
May 15, 2003
The Goldman Sachs Group, Inc.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
In connection with the registration under the Securities Act
of 1933 (the "Act") by The Goldman Sachs Group, Inc., a Delaware corporation
(the "Company"), of $16,815,000,000 aggregate amount of its senior and
subordinated debt securities, warrants, purchase contracts, units comprised of
the foregoing, preferred stock and depositary shares representing preferred
stock (collectively, the "Securities"), the shares of Common Stock, par value
$0.01 per share, of the Company (the "Shares") initially issuable upon
conversion, exercise or exchange of any Securities that are convertible into or
exercisable or exchangeable for Shares and the stock purchase rights related to
the Shares (the "Rights") to be issued pursuant to the Stockholder Protection
Rights Agreement, dated as of April 5, 1999, between the Company and Mellon
Investor Services LLC (successor to ChaseMellon Shareholder Services, L.L.C.),
as Rights Agent (the "Rights Agent"), we, as your counsel, have examined such
corporate records, certificates and other documents, including the resolutions
of the Company's Board of Directors authorizing the issuance of the Securities
(the "Resolutions"), and such questions of law, as we have considered necessary
or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion:
(1) Indenture Securities. The indenture relating to
the senior debt securities, which is dated as of May 19, 1999,
has been duly authorized, executed and delivered by the
Company, and the indenture relating to the subordinated debt
securities and the indenture relating to certain of the
warrants, in the forms filed as exhibits to the registration
statement relating to the Securities, the Shares and the
Rights (the "Registration Statement"), have been duly
authorized by the Company. When the Registration Statement has
become effective under the Act, when the indenture relating to
the subordinated debt securities
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and the indenture relating to certain of the warrants have
been duly executed and delivered substantially in the forms so
filed, when the terms of the debt securities and the warrants
to be issued under the three indentures described above (the
"Indenture Securities") and of their issuance and sale have
been duly established in conformity with the applicable
indenture so as not to violate any applicable law or result in
a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company and
when the Indenture Securities have been duly executed and
authenticated in accordance with the applicable indenture and
issued and sold as contemplated in the Registration Statement,
and if all the foregoing actions are taken pursuant to the
authority granted in the Resolutions, the Indenture Securities
will constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles, and the Shares, when
duly issued upon conversion, exercise or exchange of any
Indenture Securities that are convertible into or exercisable
or exchangeable for Shares, will be validly issued, fully paid
and nonassessable. The debt securities covered by the opinion
in this paragraph include any debt securities that may be
issued as part of the units or upon exercise or otherwise
pursuant to the terms of any other Securities, as well as any
purchase contracts or units that may be issued under the
indentures relating to the debt securities. The warrants
covered by the opinion in this paragraph include any warrants
issued under an indenture that may be issued as part of the
units or upon exercise or otherwise pursuant to the terms of
any other Securities.
(2) Warrants Not Issued Under an Indenture. When the
Registration Statement has become effective under the Act,
when the terms of the warrant agreements under which certain
of the warrants are to be issued have been duly established
and the warrant agreements have been duly executed and
delivered, when the terms of such warrants and of their
issuance and sale have been duly established in conformity
with the applicable warrant agreement and when such warrants
have been duly executed and authenticated in accordance with
the applicable warrant agreement and issued and sold as
contemplated in the Registration Statement, and if all the
foregoing actions are taken pursuant to the authority granted
in the Resolutions and so as not to violate any applicable law
or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, such
warrants will constitute valid and legally binding obligations
of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles, and the Shares, when
duly issued upon conversion, exercise or
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exchange of any such warrants that are convertible into or
exercisable or exchangeable for Shares, will be validly
issued, fully paid and nonassessable. The warrants covered by
the opinion in this paragraph include any warrants that may be
issued as part of the units or upon exercise or otherwise
pursuant to the terms of any other Securities, but they do not
include any Indenture Securities.
(3) Purchase Contracts Not Issued Under an Indenture.
When the Registration Statement has become effective under the
Act, when the terms of the governing instruments or agreements
under which certain of the purchase contracts are to be issued
have been duly established and the governing documents have
been duly executed and delivered, when the terms of such
purchase contracts and of their issuance and sale have been
duly established in conformity with the applicable governing
documents and when such purchase contracts have been duly
executed and authenticated in accordance with the applicable
governing documents and issued and sold as contemplated in the
Registration Statement, and if all the foregoing actions are
taken pursuant to the authority granted in the Resolutions and
so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company, such purchase contracts will
constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles, and the Shares, when
duly issued upon conversion, exercise or exchange of any such
purchase contracts that are convertible into or exercisable or
exchangeable for Shares, will be validly issued, fully paid
and nonassessable. The purchase contracts covered by the
opinion in this paragraph include any purchase contracts that
may be issued as part of the units or upon exercise or
otherwise pursuant to the terms of any other Securities, but
they do not include any Indenture Securities.
(4) Units Not Issued Under an Indenture. When the
Registration Statement has become effective under the Act,
when the terms of the unit agreements under which certain of
the units are to be issued have been duly established and the
unit agreements have been duly executed and delivered, when
the terms of such units and of their issuance and sale have
been duly established in conformity with the applicable unit
agreements and when such units have been duly executed and
authenticated in accordance with the applicable unit
agreements and issued and sold as contemplated in the
Registration Statement, and if all the foregoing actions are
taken pursuant to the authority granted in the Resolutions and
so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company, such units will constitute
valid and legally binding obligations of the Company, subject
to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles. The units covered by the opinion
in this paragraph include any units that may be issued upon
exercise or otherwise pursuant to the terms of any other
Securities, but they do not include any Indenture Securities.
(5) Preferred Stock. When the Registration Statement
has become effective under the Act, when the terms of the
preferred stock and of its issuance and sale have been duly
established in conformity with the Company's certificate of
incorporation, when an appropriate certificate of designations
with respect to the preferred stock has been duly filed with
the Secretary of State of the State of Delaware and when the
preferred stock has been duly issued and sold as contemplated
by the Registration Statement, and if all the foregoing
actions are taken pursuant to the authority granted in the
Resolutions and so as not to violate any applicable law or
result in a default under or
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The Goldman Sachs Group, Inc.
breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction
over the Company, the preferred stock will be validly issued,
fully paid and non-assessable, and the Shares, when duly
issued upon conversion, exercise or exchange of any preferred
stock that is convertible into or exercisable or exchangeable
for Shares, will be validly issued, fully paid and
nonassessable. The preferred stock covered in the opinion in
this paragraph includes any preferred stock that may be
represented by depositary shares or may be issued upon
exercise or otherwise pursuant to the terms of any other
Securities.
(6) Depositary Shares. When the Registration
Statement has become effective under the Act, when the terms
of the deposit agreement under which the depositary shares are
to be issued have been duly established and the deposit
agreement has been duly executed and delivered, when the terms
of the depositary shares and of their issuance and sale have
been duly established in conformity with the deposit
agreement, when the preferred stock represented by the
depositary shares has been duly delivered to the depositary
and when the depositary receipts evidencing the depositary
shares have been duly issued against deposit of the preferred
stock in accordance with the deposit agreement and issued and
sold as contemplated by the Registration Statement, and if all
the foregoing actions are taken pursuant to the authority
granted in the Resolutions and so as not to violate any
applicable law or result in a
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default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company, the depositary receipts
evidencing the depositary shares will be validly issued and
will entitle the holders thereof to the rights specified in
the depositary shares and the deposit agreement, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles. The depositary shares covered by the opinion in
this paragraph include any depositary shares that may be
issued upon exercise or otherwise pursuant to the terms of any
other Securities.
(7) Assuming that the Rights Agreement has been duly
authorized, executed and delivered by the Rights Agent, then
when the Registration Statement has become effective under the
Act and the Shares have been validly issued upon conversion,
exercise or exchange of any Securities that are convertible
into or exercisable or exchangeable for Shares, the Rights
attributable to the Shares will be validly issued.
In connection with our opinion set forth in paragraph (7)
above, we note that the question whether the Board of Directors of the Company
might be required to redeem the Rights at some future time will depend upon the
facts and circumstances existing at that time and, accordingly, is beyond the
scope of such opinion.
We note that, as of the date of this opinion, a judgment for
money in an action based on a Security denominated in a foreign currency or
currency unit in a Federal or state court in the United States ordinarily would
be enforced in the United States only in United States dollars. The date used to
determine the rate of conversion of the foreign currency or currency unit in
which a particular Security is denominated into United States dollars will
depend upon various factors, including which court renders the judgment. In the
case of a Security denominated in a foreign currency, a state court in the State
of New York rendering a judgment on such Security would be required under
Section 27 of the New York Judiciary Law to render such judgment in the foreign
currency in which the Security is denominated, and such judgment would be
converted into United States dollars at the exchange rate prevailing on the date
of entry of the judgment.
The foregoing opinion is limited to the Federal laws of the
United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware, and we are expressing no opinion as to the effect of
the laws of any other jurisdiction.
We have relied as to certain matters on information obtained
from public officials, officers of the Company and other sources believed by us
to be responsible. We have assumed, without independent verification, that the
indenture relating to the senior
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The Goldman Sachs Group, Inc.
debt securities has been duly authorized, executed and delivered by the trustee
thereunder, that all other governing documents under which the Securities are to
be issued, as well as the purchase contracts, if applicable, will have been duly
authorized, executed and delivered by all parties thereto other than the Company
and that the signatures on documents examined by us are genuine. We have further
assumed that the issuance or delivery by the Company of any securities other
than the Securities, or of any other property, upon exercise or otherwise
pursuant to the terms of the Securities will be effected pursuant to the
authority granted in the Resolutions and so as not to violate any applicable law
or result in a default under or breach of any agreement or instrument binding on
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company. Finally, we
have assumed that the authority granted in the Resolutions will remain in effect
at all relevant times.
We are expressing no opinion as to any obligations that
parties other than the Company may have under or in respect of the Securities or
as to the effect that their performance of such obligations may have upon any of
the matters referred to above.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the heading
"Validity of the Securities" in the Prospectus. In giving such consent, we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP