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