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EXHIBIT 10.26
SHAREHOLDERS' AGREEMENT
This Shareholders' Agreement (this "Agreement"), among The Goldman
Sachs Group, Inc., a Delaware corporation ("GS Inc."), and the Covered Persons
listed on Appendix A hereto, as such Appendix A may be amended from time to time
pursuant to the provisions hereof.
WITNESSETH:
WHEREAS, the Covered Persons are beneficial owners of shares of
Common Stock, par value $0.01 per share, of GS Inc. (the "Common Stock").
WHEREAS, the Covered Persons desire to address herein certain
relationships among themselves with respect to the voting and disposition of
their shares of Common Stock and various other matters and desire to give to the
Shareholders' Committee (hereinafter defined) the power to enforce their
agreements with respect thereto.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, covenants and provisions herein contained, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS AND OTHER MATTERS
Section 1.1 Definitions. The following words and phrases as used
herein shall have the following meanings, except as otherwise expressly provided
or unless the context otherwise requires:
(a) A Covered Person "acquires" Covered Shares when such Covered
Person first acquires beneficial ownership over such Covered Shares.
(b) This "Agreement" shall have the meaning ascribed to such term
in the Recitals.
(c) A "beneficial owner" of a security includes any person who,
directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise has or shares: (i) voting
power, which includes the power to vote, or to direct the voting of,
such security and/or (ii) investment power, which includes the power to
dispose, or to direct the disposition of, such security, but for
purposes of this Agreement a person shall not be deemed a beneficial
owner of
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(A) Common Stock solely by virtue of the application of Exchange Act
Rule 13d-3(d) or Exchange Act Rule 13d-5 as in effect on the date
hereof (B) Common Stock solely by virtue of the possession of the legal
right to vote securities under applicable state or other law (such as
by proxy or power of attorney) or (C) Common Stock held of record by a
"private foundation" subject to the requirements of Section 509 of the
Code. "Beneficially own" and "beneficial ownership" shall have
correlative meanings.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the applicable rulings and regulations
thereunder.
(e) "Common Stock" shall have the meaning ascribed to such term in
the Recitals.
(f) "Company" shall mean GS Inc., together with its Subsidiaries.
(g) "Continuing Provisions" shall have the meaning ascribed to
such term in Section 7.1(b).
(h) "Covered Persons" shall mean those persons from time to time
listed on Appendix A hereto, and all persons who may become parties to
this Agreement and whose name is required to be listed on Appendix A
hereto, in each case in accordance with the terms hereof.
(i) A Covered Person's "Covered Shares" shall mean any shares of
Common Stock acquired from the Company by such Covered Person and
beneficially owned by such Covered Person at the time in question, but
shall not include (i) Common Stock beneficially owned as a result of
(A) an acquisition, directly or indirectly, from the Company in an
underwritten public offering or (B) conversion of securities
convertible into Common Stock, where beneficial ownership of the
convertible securities was acquired in a transaction described in
clause (A) above, (ii) Excluded Shares (as defined in the Plan of
Incorporation), (iii) any other Common Stock excluded from the
definition of Covered Shares by action of the Board of Directors of GS
Inc. prior to the IPO Date or (iv) any other Common Stock acquired
under a deferred compensation or employee benefit plan and excluded
from the definition of Covered Shares by action of the Board of
Directors of GS Inc. and the Shareholders' Committee after the IPO
Date. "Covered Shares" shall also include the securities that are
defined to be "Covered Shares" in Section 6.4.
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(j) The term "employee" shall mean any person employed by the
Company who receives compensation, other than a person receiving
compensation in the nature of a consulting fee, a pension or a
retainer.
(k) "Employee Covered Person" shall mean a Covered Person who is
an employee of the Company at the time in question.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended to date and as further amended from time to time.
(m) A reference to an "Exchange Act Rule" shall mean such rule or
regulation of the Securities and Exchange Commission under the Exchange
Act, as in effect from time to time or as replaced by a successor rule
thereto.
(n) "General Transfer Restrictions" shall have the meaning
ascribed to such term in Section 2.2 hereof.
(o) "GS Inc." shall have the meaning ascribed to such term in the
Recitals.
(p) "IPO Date" shall mean the closing date of the initial public
offering of the Common Stock.
(q) "Permitted Basket Transaction" shall mean the purchase or sale
of, or the establishment of a long or short position in, a basket or
index of securities (or of a derivative financial instrument with
respect to a basket or index of securities) that includes securities of
GS Inc., in each case if such purchase, sale or establishment is
permitted under the Company's policy on hedging with respect to
securities of GS Inc. as announced from time to time.
(r) A "person" shall include, as applicable, any individual,
estate, trust, corporation, partnership, limited liability company,
unlimited liability company, foundation, association or other entity.
(s) "Plan of Incorporation" shall mean the plan for the
incorporation and reorganization of the business of The Goldman Sachs
Group, L.P. approved by the Schedule II Limited Partners thereof on
March 8, 1999, as amended from time to time.
(t) "PLP Transfer Restrictions" shall have the meaning ascribed to
such term in Section 2.1 hereof.
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(u) "Preliminary Vote" shall have the meaning ascribed to such
term in Section 4.1 hereof.
(v) "Restricted Person" shall mean any person that is not (i) a
Covered Person or (ii) a director, officer or employee of the Company
acting in such person's capacity as a director, officer or employee;
provided, however, that for purposes of Section 6.1(c) only, the term
"Restricted Person" shall not include Sumitomo Bank Capital Markets,
Inc. and/or Kamehameha Activities Association to the extent that either
or both of such parties are included in such group solely by virtue of
their being parties to Voting Agreements, each dated as of May [__],
1999, with GS Inc., as amended from time to time.
(w) "Shareholders' Committee" shall mean the body constituted to
administer the terms and provisions of this Agreement pursuant to
Article V hereof.
(x) "Sole Beneficial Owner" shall mean a person who is the
beneficial owner of Covered Shares, who does not share beneficial
ownership of such Covered Shares with any other person (other than
pursuant to this Agreement or applicable community property laws) and
who is the only person (other than pursuant to applicable community
property laws) with a direct economic interest in the Covered Shares.
An economic interest of the Company as pledgee shall be disregarded for
this purpose.
(y) "Subsidiary" shall mean any person in which GS Inc. owns,
directly or indirectly, a majority of the equity economic or voting
ownership interest.
(z) "The Goldman Sachs Defined Contribution Plan" shall mean The
Goldman Sachs Defined Contribution Plan adopted by the Board of
Directors of GS Inc. on May [__], 1999, as amended or supplemented from
time to time, and any successors to such Plan.
(aa) "Transfer" shall mean any sale, transfer, pledge,
hypothecation or other disposition, whether direct or indirect, whether
or not for value, and shall include any disposition of the economic or
other risks of ownership of Common Stock, including short sales of
securities of GS Inc., option transactions (whether physical or cash
settled) with respect to securities of GS Inc., use of equity or other
derivative financial instruments relating to securities of GS Inc. and
other hedging arrangements with respect to securities of GS Inc., in
each such case other than Permitted Basket Transactions.
Notwithstanding the foregoing, bona fide pledges of Common Stock
approved by GS Inc. and foreclosures pursuant thereto shall not
constitute Transfers within the meaning of this definition.
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(ab) "Transfer Restrictions" shall mean the General Transfer
Restrictions and the PLP Transfer Restrictions.
(ac) "vote" shall include actions taken or proposed to be taken by
written consent.
(ad) "Voted Covered Shares" shall have the meaning ascribed to
such term in Section 4.2(a).
(ae) "Voting Interests" shall have the meaning ascribed to such
term in Section 4.1 hereof.
Section 1.2 Gender. For the purposes of this Agreement, the words
"he," "his" or "himself" shall be interpreted to include the masculine, feminine
and corporate, other entity or trust form.
ARTICLE II
LIMITATIONS ON TRANSFER OF SHARES
Section 2.1 General. Each Covered Person agrees that such Covered
Person shall not Transfer any Covered Shares beneficially owned by such Covered
Person, except in accordance with all of the following: (a) the terms of this
Agreement, (b) the restrictions on transferability of Common Stock contained in
the Plan of Incorporation (the "PLP Transfer Restrictions"), if applicable, and
(c) the terms of any other contract or agreement with the Company or other
undertaking by which such Covered Person is bound and to which such Covered
Shares are subject.
Section 2.2 General Transfer Restrictions. Each Covered Person
agrees that for so long as such Covered Person is an Employee Covered Person
such Covered Person shall at all times be the Sole Beneficial Owner of at least
that number of Covered Shares which equals 25% of the aggregate number of
Covered Shares (a) beneficially owned by such Covered Person at the time such
Covered Person became a Covered Person and (b) beneficial ownership of which is
acquired by such Covered Person thereafter, with no reduction in such aggregate
number for Covered Shares disposed of by such Covered Person (the "General
Transfer Restrictions"). For purposes of this Section 2.2 only, Covered Shares
held by the trust underlying The Goldman Sachs Defined Contribution Plan and
allocated to a Covered Person shall not be deemed to be beneficially owned by
such Covered Person until such Covered Shares are distributed to such Covered
Person in accordance with the terms of The Goldman Sachs Defined Contribution
Plan. For purposes of this Section 2.2 only, when a delivery of Covered Shares
is made by GS Inc. or by the trustee of the trust underlying The Goldman Sachs
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Defined Contribution Plan to a Covered Person net of Covered Shares to be
withheld for tax purposes or to be paid for the receipt of such delivered
Covered Shares, the recipient of such delivered number of Covered Shares shall
be treated as if such Covered Person acquired the total (gross) number of
Covered Shares to be delivered before giving effect to any such withholding or
payment.
Section 2.3 Compliance with Certain Restrictions.
(a) Each Covered Person agrees that, with respect to all Common
Stock beneficially owned by such Covered Person, such Covered Person
shall comply with the restrictions on transfer imposed by Section 6(e)
of the Underwriting Agreement, dated as of May [__], 1999, among GS
Inc. and the several underwriters named therein, whether or not said
Section refers to such Covered Person by name.
(b) Each Employee Covered Person agrees that, with respect to all
Common Stock beneficially owned by such Employee Covered Person, and
each Covered Person who is not an Employee Covered Person agrees that,
with respect to all Covered Shares beneficially owned by such Covered
Person which could not then be Transferred without contravening the PLP
Transfer Restrictions, at the request of GS Inc. such Covered Person
shall comply with any future restrictions on transfer imposed by or
with the consent of GS Inc. from time to time in connection with any
future offerings of securities of GS Inc., whether by GS Inc. or by any
securityholder of GS Inc. and whether or not such restrictions on
transfer refer to such Covered Person by name.
(c) Each Employee Covered Person agrees that, with respect to all
Common Stock beneficially owned by such Employee Covered Person, such
Employee Covered Person will comply with any restrictions imposed by
the Company from time to time to enable the Company or any party to an
agreement with the Company to account for a business combination by the
pooling of interests method.
Section 2.4 Holding of Covered Shares in Custody and in Nominee
Name; Legend on Certificates; Entry of Stop Transfer Orders.
(a) Each Covered Person understands and agrees that all Covered
Shares beneficially owned by each Employee Covered Person and all
Covered Shares which could not then be Transferred without contravening
the PLP Transfer Restrictions beneficially owned by each Covered Person
who is not an Employee Covered Person (in each case other than Covered
Shares held of record by a trustee in a compensation or benefit plan
administered by the Company and other
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Covered Shares that have been pledged to the Company to secure the
performance of such Covered Person's obligations under any agreement
with the Company) shall be registered in the name of a nominee for such
Covered Person and shall be held in the custody of a custodian until
otherwise determined by the Shareholders' Committee or the Board of
Directors of GS Inc. or until such time as such Covered Shares are
released pursuant to Section 2.4(e) or Section 2.4(f) hereof (whichever
occurs first), and each Covered Person agrees to assign, endorse and
register for transfer into such nominee name or deliver to such
custodian any such Covered Shares which are not so registered or so
held, as the case may be. The form of the custody agreement and the
identity of the custodian and nominee must be satisfactory in form and
substance to the Shareholders' Committee and GS Inc.
(b) Whenever the nominee holder shall receive any dividend or
other distribution upon any Covered Shares other than in Covered
Shares, the Shareholders' Committee will give or cause to be given
notice or direction to the applicable nominee and/or custodian referred
to in paragraph (a) to permit the prompt distribution of such dividend
or distribution to the beneficial owner of such Covered Shares, net of
any tax withholding amounts required to be withheld by the nominee,
unless the distribution of such dividend or distribution is restricted
by the terms of another agreement between the Covered Person and the
Company known to the Shareholders' Committee.
(c) Each Covered Person understands and agrees that any
outstanding certificate representing Covered Shares beneficially owned
by an Employee Covered Person or representing Covered Shares which
could not then be Transferred without contravening the PLP Transfer
Restrictions beneficially owned by a Covered Person who is not an
Employee Covered Person, and any agreement or other instrument
evidencing restricted stock units, options or other rights to receive
or acquire Covered Shares beneficially owned by such Covered Person,
may bear a legend noted conspicuously on each such certificate,
agreement or other instrument reading substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF EITHER OR BOTH OF A SHAREHOLDERS' AGREEMENT AMONG
THE GOLDMAN SACHS GROUP, INC. ("GS INC.") AND THE PERSONS NAMED
THEREIN AND A PLAN OF INCORPORATION OF THE GOLDMAN SACHS GROUP,
L.P., COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICE OF GS INC. AND WHICH, AMONG OTHER MATTERS, PLACE
RESTRICTIONS ON THE DISPOSITION AND VOTING OF SUCH SECURITIES. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
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SOLD, EXCHANGED, TRANSFERRED, ASSIGNED, PLEDGED, PARTICIPATED,
HYPOTHECATED OR OTHERWISE DISPOSED OF ONLY IN ACCORDANCE
THEREWITH."
(d) Each Covered Person agrees and consents to the entry of stop
transfer orders against the transfer of Covered Shares subject to
Transfer Restrictions except in compliance with this Agreement.
(e) The Shareholders' Committee shall develop procedures for
releasing all Covered Shares of each Covered Person who is not an
Employee Covered Person which could then be Transferred without
contravening any Transfer Restrictions to or at the direction of such
Covered Person free and clear of all restrictions and legends described
in this Section 2.4.
(f) The Shareholders' Committee shall also develop procedures for
releasing (free and clear of all restrictions and legends described in
this Section 2.4) a specified number of Covered Shares of an Employee
Covered Person upon the request of any Covered Person and to or at the
direction of such Employee Covered Person, provided that such request
is accompanied by a certificate of such requesting Covered Person (i)
indicating such requesting Covered Person's intention to Transfer
promptly such specified number of Covered Shares and (ii) establishing
that such specified number of Covered Shares are then permitted to be
Transferred without contravening any Transfer Restrictions (which
evidence must be satisfactory to the Shareholders' Committee).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each Covered Person severally represents and warrants for himself
that:
(a) Such Covered Person has (and with respect to Covered Shares to
be acquired, will have) good, valid and marketable title to the Covered
Shares, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind, other than pursuant to this
Agreement, the Plan of Incorporation or another agreement with the
Company by which such Covered Person is bound and to which the Covered
Shares are subject; and
(b) (if the Covered Person is other than a natural person, with
respect to subsections (i) through (x), and if the Covered Person is a
natural person, with respect to subsections (iv) through (x) only): (i)
such Covered Person is duly organized and validly existing in good
standing under the laws of the jurisdiction
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of such Covered Person's formation; (ii) such Covered Person has full
right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance
of the transactions contemplated herein have been duly authorized, and
no further proceedings on the part of such Covered Person are necessary
to authorize the execution, delivery and performance of this Agreement;
and this Agreement has been duly executed by such Covered Person; (iv)
the person signing this Agreement on behalf of such Covered Person has
been duly authorized by such Covered Person to do so; (v) this
Agreement constitutes the legal, valid and binding obligation of such
Covered Person, enforceable against such Covered Person in accordance
with its terms (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); (vi) neither the execution and delivery of this Agreement
by such Covered Person nor the consummation of the transactions
contemplated herein conflicts with or results in a breach of any of the
terms, conditions or provisions of any agreement or instrument to
which such Covered Person is a party or by which the assets of such
Covered Person are bound (including without limitation the
organizational documents of such Covered Person, if such Covered Person
is other than a natural person), or constitutes a default under any of
the foregoing, or violates any law or regulation; (vii) such Covered
Person has obtained all authorizations, consents, approvals and
clearances of all courts, governmental agencies and authorities, and
any other person, if any (including the spouse of such Covered Person
with respect to the interest of such spouse in the Covered Shares of
such Covered Person if the consent of such spouse is required),
required to permit such Covered Person to enter into this Agreement and
to consummate the transactions contemplated herein; (viii) there are no
actions, suits or proceedings pending, or, to the knowledge of such
Covered Person, threatened against or affecting such Covered Person or
such Covered Person's assets in any court or before or by any federal,
state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality which, if adversely determined, would
impair the ability of such Covered Person to perform this Agreement;
(ix) the performance of this Agreement will not violate any order,
writ, injunction, decree or demand of any court or federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality to which such Covered Person is subject; and
(x) no statement, representation or warranty made by such Covered
Person in this Agreement, nor any information provided by such Covered
Person for inclusion in a report filed pursuant to Section 6.3 hereof
or in a registration statement filed by GS Inc. contains or will
contain any untrue statement of a material fact or omits or will omit
to state a material fact necessary in order to make the statements,
representations or warranties contained herein or information provided
therein not misleading.
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ARTICLE IV
VOTING AGREEMENT
Section 4.1 Preliminary Vote of Covered Persons. Prior to any vote
of the stockholders of GS Inc. there shall be a separate, preliminary vote, on
each matter upon which a stockholder vote is proposed to be taken (each, a
"Preliminary Vote"), of the Covered Shares beneficially owned by (a) through
December 31, 2000, all Covered Persons, and (b) on and after January 1, 2001,
the Employee Covered Persons (including in both clause (a) and (b) and for the
purpose of this Article IV shares of Common Stock held by the trust underlying
The Goldman Sachs Defined Contribution Plan and allocated to Covered Persons (in
the case of clause (a)) and Employee Covered Persons (in the case of clause (b))
who are participants therein) (such Covered Shares at any such time, the "Voting
Interests"). The Preliminary Vote shall be conducted pursuant to procedures
established by the Shareholders' Committee.
Section 4.2 Voting of the Voting Interests.
(a) Other than in elections of directors, every Covered Share
beneficially owned by an Employee Covered Person, every Covered Share
which could not then be Transferred without contravening the PLP
Transfer Restrictions beneficially owned by any Covered Person who is
not an Employee Covered Person and every Covered Share held by the
trust underlying The Goldman Sachs Defined Contribution Plan and
allocated to a Covered Person (collectively, the "Voted Covered
Shares") shall be voted in accordance with the vote of the majority of
the votes cast on the matter in question by the Voting Interests in the
Preliminary Vote.
(b) In elections of directors, every Voted Covered Share shall be
voted in favor of the election of those persons, equal in number to the
number of such positions to be filled, receiving the highest numbers of
votes cast by the Voting Interests in the Preliminary Vote.
Section 4.3 Irrevocable Proxy and Power of Attorney.
(a) By his signature hereto, each Covered Person hereby gives the
Shareholders' Committee, with full power of substitution and
resubstitution, an irrevocable proxy to vote or otherwise act with
respect to all of the Covered Person's Voted Covered Shares, as fully,
to the same extent and with the same effect as such Covered Person
might or could do under any applicable laws or regulations governing
the rights and powers of stockholders of a Delaware corporation and (i)
directs that such proxy shall be voted in connection with such
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matters as are the subject of a Preliminary Vote as provided in this
Agreement -- in accordance with such Preliminary Vote, (ii) authorizes
the holder of such proxy to vote on such other matters as may come
before a meeting of stockholders of GS Inc. or any adjournment thereof
and as are related, directly or indirectly, to the matter which was the
subject of the Preliminary Vote -- as the aforementioned persons see
fit in their discretion but in a manner consistent with the Preliminary
Vote, and (iii) authorizes the holder of such proxy to vote on such
other matters as may come before a meeting of stockholders of GS Inc.
or any adjournment thereof (including matters related to adjournment
thereof) -- as the aforementioned persons see fit in their discretion
but not to cast any vote under this clause (iii) which is inconsistent
with the Preliminary Vote or which would achieve an outcome that would
frustrate the intent of the Preliminary Vote. Each such Covered Person
hereby affirms that this proxy is given as a term of this Agreement and
as such is coupled with an interest and is irrevocable. It is further
understood and agreed by each such Covered Person that this proxy may
be exercised by the aforementioned persons with respect to all Voted
Covered Shares of such Covered Person for the period beginning on the
date hereof and ending on the date this Agreement shall have been
terminated pursuant to Section 7.1(a) hereof.
(b) By his signature hereto, each Covered Person appoints the
Shareholders' Committee, with full power of substitution and
resubstitution, his true and lawful attorney-in-fact to direct, in
accordance with the provisions of this Article IV, the voting of any
Voted Covered Shares held of record by any other person but
beneficially owned by such Covered Person (including Voted Covered
Shares held by the trust underlying The Goldman Sachs Defined
Contribution Plan and allocated to such Covered Person), granting to
such attorneys, and each of them, full power and authority to do and
perform each and every act and thing whatsoever that such attorney or
attorneys may deem necessary, advisable or appropriate to carry out
fully the intent of Section 4.2 and Section 4.3(a) as such Covered
Person might or could do personally, hereby ratifying and confirming
all acts and things that such attorney or attorneys may do or cause to
be done by virtue of this power of attorney. It is understood and
agreed by each such Covered Person that this appointment, empowerment
and authorization may be exercised by the aforementioned persons with
respect to all Voted Covered Shares of such Covered Person, and held of
record by another person, for the period beginning on the date hereof
and ending on the date this Agreement shall have been terminated
pursuant to Section 7.1(a) hereof.
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ARTICLE V
SHAREHOLDERS' COMMITTEE
Section 5.1 Constituency. The Shareholders' Committee shall at any
time consist of each of those individuals who are both Employee Covered Persons
and members of the Board of Directors of GS Inc. and who agree to serve as
members of the Shareholders' Committee.
Section 5.2 Additional Members. If there are less than three
individuals who are both Employee Covered Persons and members of the Board of
Directors of GS Inc. and who agree to serve as members of the Shareholders'
Committee, the Shareholders' Committee shall consist of each such individual
plus such additional individuals who are Employee Covered Persons and who are
selected pursuant to procedures established by the Shareholders' Committee as
shall assure a Shareholders' Committee of not less than three members who are
Employee Covered Persons.
Section 5.3 Determinations of and Actions by the Shareholders'
Committee.
(a) All determinations necessary or advisable under this Agreement
(including determinations of beneficial ownership) shall be made by the
Shareholders' Committee, whose determinations shall be final and
binding. The Shareholders' Committee's determinations under this
Agreement and the Plan of Incorporation and actions (including waivers)
hereunder and thereunder need not be uniform and may be made
selectively among Covered Persons (whether or not such Covered Persons
are similarly situated).
(b) Each Covered Person recognizes and agrees that the members of
the Shareholders' Committee in acting hereunder shall at all times be
acting in their individual capacities and not as directors or officers
of the Company and in so acting or failing to act shall not have any
fiduciary duties to the Covered Persons as a member of the
Shareholders' Committee by virtue of the fact that one or more of such
members may also be serving as a director or officer of the Company or
otherwise.
(c) The Shareholders' Committee shall act through a majority vote
of its members and such actions may be taken in person at a meeting or
by a written instrument signed by all of the members.
Section 5.4 Certain Obligations of the Shareholders' Committee.
The Shareholders' Committee shall be obligated (a) to attend as proxy, or cause
a person designated by it and acting as lawful proxy to attend as proxy, each
meeting of the
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stockholders of GS Inc. and to vote or to cause such designee to vote the
Covered Shares over which it has the power to vote in accordance with the
results of the Preliminary Vote as set forth in Section 4.2, and (b) to develop
procedures governing Preliminary Votes and other votes and actions to be taken
pursuant to this Agreement.
ARTICLE VI
OTHER AGREEMENTS OF THE PARTIES
Section 6.1 Standstill Provisions. Each Covered Person agrees that
such Covered Person shall not, directly or indirectly, alone or in concert with
any other person, (a) make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are defined in Exchange Act Rule 14a-1) relating to any
securities of the Company to or with any Restricted Person; (b) deposit any
Covered Shares in a voting trust or subject any Covered Shares to any voting
agreement or arrangement that includes as a party any Restricted Person; (c)
form, join or in any way participate in a group (as contemplated by Exchange Act
Rule 13d-5(b)) with respect to any securities of the Company (or any securities
the ownership of which would make the owner thereof a beneficial owner of
securities of the Company (for this purpose as determined by Exchange Act Rule
13d-3 and Exchange Act Rule 13d-5)) that includes as a party any Restricted
Person; (d) make any announcement subject to Exchange Act Rule 14a-1(l)(2)(iv)
to any Restricted Person; (e) initiate or propose any "shareholder proposal"
subject to Exchange Act Rule 14a-8; (f) together with any Restricted Person,
make any offer or proposal to acquire any securities or assets of GS Inc. or any
of its Subsidiaries or solicit or propose to effect or negotiate any form of
business combination, restructuring, recapitalization or other extraordinary
transaction involving, or any change in control of, GS Inc., its Subsidiaries or
any of their respective securities or assets; (g) together with any Restricted
Person, seek the removal of any directors or a change in the composition or size
of the board of directors of GS Inc.; (h) together with any Restricted Person,
in any way participate in a call for any special meeting of the stockholders of
GS Inc.; or (i) assist, advise or encourage any person with respect to, or seek
to do, any of the foregoing.
Section 6.2 Expenses.
(a) GS Inc. shall be responsible for all expenses of the members
of the Shareholders' Committee incurred in the operation and
administration of this Agreement, including expenses of proxy
solicitation for and tabulation of the Preliminary Vote, expenses
incurred in preparing appropriate filings and correspondence with the
Securities and Exchange Commission, lawyers', accountants', agents',
consultants', experts', investment banking and other professionals'
fees, expenses incurred in enforcing the provisions of this Agreement,
expenses incurred in maintaining any necessary or appropriate books and
records relating to this
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Agreement and expenses incurred in the preparation of amendments to and
waivers of provisions of this Agreement.
(b) Each Covered Person shall be responsible for all expenses of
such Covered Person incurred in connection with the compliance by such
Covered Person with his obligations under this Agreement, including
expenses incurred by the Shareholders' Committee or GS Inc. in
enforcing the provisions of this Agreement relating to such
obligations.
Section 6.3 Filing of Schedule 13D or 13G.
(a) In the event that a Covered Person is required to file a
report of beneficial ownership on Schedule 13D or 13G with respect to
the Covered Shares beneficially owned by him (for this purpose as
determined by Exchange Act Rule 13d-3 and Exchange Act Rule 13d-5),
such Covered Person agrees that, unless otherwise directed by the
Shareholders' Committee, such Covered Person will not file a separate
such report, but will file a report together with the other Covered
Persons, containing the information required by the Exchange Act, and
such Covered Person understands and agrees that such report shall be
filed on his behalf by the Shareholders' Committee or any member
thereof. Such Covered Person shall cooperate fully with the other
Covered Persons and the Shareholders' Committee to achieve the timely
filing of any such report and any amendments thereto as may be
required, and such Covered Person agrees that any information
concerning such Covered Person which such Covered Person furnishes in
connection with the preparation and filing of such report will be
complete and accurate.
(b) By his signature hereto, each Covered Person appoints the
Shareholders' Committee and each member thereof, with full power of
substitution and resubstitution, his true and lawful attorney-in-fact
to execute such reports and any and all amendments thereto and to file
such reports with all exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission,
granting to such attorneys, and each of them, full power and authority
to do and perform each and every act and thing whatsoever that such
attorney or attorneys may deem necessary, advisable or appropriate to
carry out fully the intent of this Section 6.3 as such Covered Person
might or could do personally, hereby ratifying and confirming all acts
and things that such attorney or attorneys may do or cause to be done
by virtue of this power of attorney. Each Covered Person hereby further
designates such attorneys as such Covered Person's agents authorized to
receive notices and communications with respect to such reports and any
amendments thereto. It is understood and agreed by each such Covered
Person that this appointment, empowerment and authorization may be
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15
exercised by the aforementioned persons for the period beginning on the
date hereof and ending on the date such Covered Person is no longer
subject to the provisions of this Agreement (and shall extend
thereafter for such time as is required to reflect that such Covered
Person is no longer a party to this Agreement).
Section 6.4 Adjustment upon Changes in Capitalization; Adjustments
upon Changes of Control; Representatives, Successors and Assigns.
(a) In the event of any change in the outstanding Common Stock by
reason of stock dividends, stock splits, reverse stock splits,
spin-offs, split-ups, recapitalizations, combinations, exchanges of
shares and the like, the term "Covered Shares" shall refer to and
include the securities received or resulting therefrom, but only to the
extent such securities are received in exchange for or in respect of
Covered Shares. Upon the occurrence of any event described in the
immediately preceding sentence, the Shareholders' Committee shall make
such adjustments to or interpretations of the restrictions of Section
2.2 (and, if it so determines, any other provisions hereof) as it shall
deem necessary or desirable to carry out the intent of such
provision(s). If the Shareholders' Committee deems it desirable, any
such adjustments may take effect from the record date, the "when issued
trading date", the "ex dividend date" or another appropriate date.
(b) In the event of any business combination, restructuring,
recapitalization or other extraordinary transaction involving GS Inc.,
its Subsidiaries or any of their respective securities or assets as a
result of which the Covered Persons shall hold voting securities of a
person other than GS Inc., the Covered Persons agree that this
Agreement shall also continue in full force and effect with respect to
such voting securities of such other person formerly representing or
distributed in respect of Covered Shares of GS Inc., and the terms
"Covered Shares," "Common Stock" and "Voting Interests," and "GS Inc."
and "Company," shall refer to such voting securities formerly
representing or distributed in respect of Covered Shares of GS Inc. and
such person, respectively. Upon the occurrence of any event described
in the immediately preceding sentence, the Shareholders' Committee
shall make such adjustments to or interpretations of the restrictions
of Section 2.2 (and, if it so determines, any other provisions hereof)
as it shall deem necessary or desirable to carry out the intent of such
provision(s). If the Shareholders' Committee deems it desirable, any
such adjustments may take effect from the record date or another
appropriate date.
(c) This Agreement shall be binding upon and inure to the benefit
of the respective legatees, legal representatives, successors and
assigns of the Covered Persons (and GS Inc. in the event of a
transaction described in Section 6.4(b)
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hereof); provided, however, that a Covered Person may not assign this
Agreement or any of his rights or obligations hereunder without the
prior written consent of GS Inc., and any assignment without such
consent by a Covered Person shall be void; and provided further that no
assignment of this Agreement by GS Inc. or to a successor of GS Inc.
(by operation of law or otherwise) shall be valid unless such
assignment is made to a person which succeeds to the business of GS
Inc. substantially as an entirety.
Section 6.5 Further Assurances. Each Covered Person agrees to
execute such additional documents and take such further action as may be
reasonably necessary to effect the provisions of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Term of the Agreement; Termination of Certain
Provisions.
(a) The term of this Agreement shall continue until the first to
occur of January 1, 2050 and such time as this Agreement is terminated
by the affirmative vote of not less than 66 2/3% of the outstanding
Voting Interests. If this Agreement is terminated prior to the
expiration or termination of the restrictions on transfer referred to
in Section 2.3(a), such restrictions on transfer shall continue to
apply in accordance with the provisions of Section 6(e) of the
Underwriting Agreement referred to in Section 2.3(a) unless waived or
terminated as provided in said Underwriting Agreement. If this
Agreement is terminated prior to the expiration or termination of the
PLP Transfer Restrictions, the PLP Transfer Restrictions shall continue
to apply in accordance with the provisions of the Plan of Incorporation
unless waived or terminated as provided in the Plan of Incorporation.
(b) Unless this Agreement is theretofore terminated pursuant to
Section 7.1(a) hereof, any Covered Person who ceases to be an employee
for any reason other than death shall no longer be bound by the
provisions of Section 2.2 and Section 6.1 hereof (unless such Covered
Person is subject to the PLP Transfer Restrictions in which case
Section 6.1 shall continue to apply until December 31, 2000) but shall
be bound by all other provisions of this Agreement until such time as
such Covered Person holds all Covered Shares free from PLP Transfer
Restrictions. Thereafter, such Covered Person shall no longer be bound
by the provisions of this Agreement (other than Sections 5.3, 6.2, 6.3,
6.5, 7.4, 7.5, 7.6, 7.8, 7.10 and 7.11 (the "Continuing Provisions")),
and such Covered Person's name shall be removed from Appendix A to this
Agreement.
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(c) Unless this Agreement is theretofore terminated pursuant to
Section 7.1(a) hereof, the estate of any Covered Person who ceases to
be an employee by reason of death or any Covered Person who ceases to
be an employee for any reason other than death and who subsequently
dies shall from and after the date of such death be bound only by the
restrictions on transfer imposed by Section 2.3(a) hereof and the
Continuing Provisions; and upon the expiration of the restrictions in
Section 2.3(a), the estate of such Covered Person shall no longer be
bound by the provisions of this Agreement (other than the Continuing
Provisions), and such Covered Person's name shall be removed from
Appendix A to this Agreement.
Section 7.2 Amendments.
(a) Except as provided in this Section 7.2, provisions of this
Agreement may be amended only by the affirmative vote of a majority of
the outstanding Voting Interests.
(b) This Section 7.2(b), Section 7.1(a) and Section 7.3(a)(i) may
be amended only by the affirmative vote of 66 2/3% of the outstanding
Voting Interests. Any amendment of any other provision of this
Agreement that would have the effect, in connection with a tender or
exchange offer by any person other than the Company as to which the
Board of Directors of GS Inc. is recommending rejection, of permitting
Transfers which would not be permitted by the terms of this Agreement
as theretofore in effect shall also require the affirmative vote of
66 2/3% of the outstanding Voting Interests.
(c) This Section 7.2(c), Article V, Section 7.3(b) and any other
provision the amendment (or addition) of which has the effect of
materially changing the rights or obligations of the Shareholders'
Committee hereunder may be amended (or added) either (i) with the
approval of the Shareholders' Committee and the affirmative vote of a
majority of the Voting Interests or (ii) by the affirmative vote of
66 2/3% of the outstanding Voting Interests.
(d) In addition to any other vote or approval that may be required
under this Section 7.2, any amendment to the General Transfer
Restrictions that would make such General Transfer Restrictions
materially more onerous to a Covered Person will not be enforceable
against that Covered Person unless that Covered Person has consented to
such amendment.
(e) In addition to any other vote or approval that may be required
under this Section 7.2, any amendment of this Agreement that has the
effect of changing the obligations of GS Inc. hereunder to make such
obligations materially more onerous to GS Inc. shall require the
approval of GS Inc.
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(f) In addition to any other vote or approval that may be
required under this Section 7.2, any amendment that has the effect of
amending the provisions of Section 2.3(a), 2.3(b) or 2.3(c) shall
require the approval of GS Inc.
(g) Each Covered Person understands that it is intended that each
managing director of the Company will be a Covered Person under this
Agreement or will become a Covered Person upon his appointment to such
position, and each Covered Person further understands that from time to
time certain other persons may become Covered Persons and certain
Covered Persons will cease to be bound by the provisions of this
Agreement pursuant to the terms hereof. Accordingly, this Agreement may
be amended by action of the Shareholders' Committee from time to time
and without the approval of any other person, but solely for the
purposes of (i) adding to Appendix A such persons as shall be made
party to this Agreement pursuant to the terms hereof or shall (A) be
appointed managing directors of the Company and (B) execute a
counterpart of the signature page of this Agreement, such addition to
be effective as of the time of such action or appointment and (ii)
removing from Appendix A such persons as shall cease to be bound by the
provisions of this Agreement pursuant to Sections 7.1(b) or (c) hereof,
which additions and removals shall be given effect from time to time by
appropriate changes to Appendix A.
Section 7.3 Waivers. The Transfer Restrictions and the other
provisions of this Agreement may be waived only as provided in this Section 7.3.
(a) The holders of the outstanding Voting Interests may waive the
Transfer Restrictions and the other provisions of this Agreement
without the consent of any other person as follows:
(i) The Transfer Restrictions may be waived, in connection
with any tender or exchange offer by any person other
than the Company as to which the Board of Directors of
GS Inc. is recommending rejection at the time of such
waiver, only by the affirmative vote of 66 2/3% of the
outstanding Voting Interests;
(ii) The Transfer Restrictions may be waived, in connection
with any tender or exchange offer by any person other
than the Company as to which the Board of Directors of
GS Inc. is recommending acceptance or is not making any
recommendation with respect to acceptance at the time
of such waiver, only by the affirmative vote of a
majority of the outstanding Voting Interests;
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(iii) The Transfer Restrictions may be waived, in connection
with any tender or exchange offer by the Company, by
the affirmative vote of a majority of the outstanding
Voting Interests;
(iv) In all circumstances other than those set forth in
Section 7.3(a)(i), (ii) and (iii), the provisions of
this Agreement may be waived only by the affirmative
vote of a majority of the outstanding Voting Interests;
provided, however, that the holders of the outstanding
Voting Interests may not waive the provisions of this
Agreement in the circumstances set forth in Section
7.3(b); and
(v) In addition to any other action that may be required
under this Section 7.3(a), any waiver that has the
effect of waiving the provisions of Section 2.3(a),
2.3(b) or 2.3(c) shall require the approval of GS Inc.
(b) The Shareholders' Committee may waive the Transfer
Restrictions and the other provisions of this Agreement without the
consent of any other person as follows:
(i) The Shareholders' Committee may waive the Transfer
Restrictions and the other provisions of this Agreement
to permit: (A) Covered Persons to participate as
sellers in underwritten public offerings of, and stock
repurchase programs and tender offers by GS Inc. for,
Common Stock; (B) Transfers of Covered Shares to
organizations described in Section 501(c)(3) of the
Code, including gifts to "private foundations" subject
to the requirements of Section 509 of the Code; (C)
Transfers of Covered Shares held in employee benefit
plans of the Company either generally or in particular
situations; and (D) particular Covered Persons or all
Covered Persons to Transfer Covered Shares in
particular situations (such as Transfers to family
members, partnerships or trusts), but not generally
(provided that in each of (A) through (D), waivers of
the restrictions imposed by Section 2.3(a), 2.3(b) and
2.3(c) shall also require the prior written consent of
GS Inc.);
(ii) The Shareholders' Committee may waive the PLP Transfer
Restrictions in all circumstances other than in
connection with
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a tender or exchange offer by any person other than the
Company; and
(iii) The Shareholders' Committee may waive any or all of the
Transfer Restrictions and the other provisions of this
Agreement with respect to Covered Shares owned by a
person at the time the person becomes a managing
director of the Company or acquired by the person in
connection with such person's becoming a managing
director of the Company; provided that such person was
not an employee of the Company prior to the granting of
such waiver by the Shareholders' Committee.
(c) GS Inc. agrees that the PLP Transfer Restrictions shall be
deemed to be waived under the Plan of Incorporation if they are waived
as provided in this Agreement.
(d) In connection with any waiver granted under this Agreement,
the Shareholders' Committee or the holders of the percentage of Voting
Interests required for the waiver, as the case may be, may impose such
conditions as they determine on the granting of such waivers.
(e) The failure of the Company or the Shareholders' Committee at
any time or times to require performance of any provision of this
Agreement shall in no manner affect the rights at a later time to
enforce the same. No waiver by the Company or the Shareholders'
Committee of the breach of any term contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such
breach or the breach of any other term of this Agreement.
Section 7.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 7.5 Resolution of Disputes.
(a) The Shareholders' Committee shall have the sole and exclusive
power to enforce the provisions of this Agreement. The Shareholders'
Committee may in its sole discretion request GS Inc. to conduct such
enforcement, and GS Inc. agrees to conduct such enforcement as
requested and directed by the Shareholders' Committee.
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(b) Without diminishing the finality and conclusive effect of any
determination by the Shareholders' Committee of any matter under this
Agreement which is provided herein to be determined or proposed by the
Shareholders' Committee (and subject to the provisions of paragraphs
(c) and (d) hereof), any dispute, controversy or claim arising out of
or relating to or concerning the provisions of this Agreement shall be
finally settled by arbitration in New York City before, and in
accordance with the rules then obtaining of, the New York Stock
Exchange, Inc. ("NYSE"), or if the NYSE declines to arbitrate the
matter, the American Arbitration Association ("AAA") in accordance with
the commercial arbitration rules of the AAA.
(c) Notwithstanding the provisions of paragraph (b), and in
addition to its right to submit any dispute or controversy to
arbitration, the Shareholders' Committee may bring, or may cause GS
Inc. to bring, on behalf of the Shareholders' Committee or on behalf of
one or more Covered Persons, an action or special proceeding in a state
or federal court of competent jurisdiction sitting in the State of
Delaware, whether or not an arbitration proceeding has theretofore been
or is ever initiated, for the purpose of temporarily, preliminarily or
permanently enforcing the provisions of this Agreement and, for the
purposes of this paragraph (c), each Covered Person (i) expressly
consents to the application of paragraph (d) to any such action or
proceeding, (ii) agrees that proof shall not be required that monetary
damages for breach of the provisions of this Agreement would be
difficult to calculate and that remedies at law would be inadequate and
(iii) irrevocably appoints each General Counsel of GS Inc., c/o The
Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801 as such Covered Person's agent for
service of process in connection with any such action or proceeding,
who shall promptly advise such Covered Person of any such service of
process.
(d) (i) EACH COVERED PERSON HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE
STATE OF DELAWARE OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO OR CONCERNING THIS AGREEMENT THAT IS NOT OTHERWISE
ARBITRATED ACCORDING TO THE PROVISIONS OF PARAGRAPH (b) HEREOF. This
includes any suit, action or proceeding to compel arbitration or to
enforce an arbitration award. The parties acknowledge that the forum
designated by this paragraph (d) has a reasonable relation to this
Agreement, and to the parties' relationship with one another.
Notwithstanding the foregoing, nothing herein shall preclude the
Shareholders' Committee or GS Inc. from bringing any action or
proceeding in any other court for the purpose of enforcing the
provisions of this Section 7.5.
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(ii) The agreement of the parties as to forum is independent of
the law that may be applied in the action, and they each agree to such
forum even if the forum may under applicable law choose to apply
non-forum law. The parties hereby waive, to the fullest extent
permitted by applicable law, any objection which they now or hereafter
may have to personal jurisdiction or to the laying of venue of any such
suit, action or proceeding brought in any court referred to in
paragraph (d)(i). The parties undertake not to commence any action
arising out of or relating to or concerning this Agreement in any forum
other than a forum described in paragraph (d)(i). The parties agree
that, to the fullest extent permitted by applicable law, a final and
non-appealable judgment in any such suit, action or proceeding in any
such court shall be conclusive and binding upon the parties.
Section 7.6 Relationship of Parties. The terms of this Agreement
are intended not to create a separate entity for U.S. federal income tax
purposes, and nothing in this Agreement shall be read to create any partnership,
joint venture or separate entity among the parties or to create any trust or
other fiduciary relationship between them.
Section 7.7 Notices.
(a) Any communication, demand or notice to be given hereunder will
be duly given (and shall be deemed to be received) when delivered in
writing by hand or first class mail or by telecopy to a party at its
address as indicated below:
If to a Covered Person,
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
Telecopy: (212) 902-3876
Attention: General Counsel;
If to the Shareholders' Committee, at
Shareholders' Committee under the Shareholders' Agreement,
dated May [__], 1999
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
Telecopy: (212) 902-3876
Attention: General Counsel;
and
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If to GS Inc., at
The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
Telecopy: (212) 902-3876
Attention: General Counsel.
GS Inc. shall be responsible for notifying each Covered Person of
the receipt of a communication, demand or notice under this Agreement
relevant to such Covered Person at the address of such Covered Person
then in the records of GS Inc. (and each Covered Person shall notify GS
Inc. of any change in such address for communications, demands and
notices).
(b) Unless otherwise provided to the contrary herein, any notice
which is required to be given in writing pursuant to the terms of this
Agreement may be given by telecopy.
Section 7.8 Severability. If any provision of this Agreement is
finally held to be invalid, illegal or unenforceable, (a) the remaining terms
and provisions hereof shall be unimpaired and (b) the invalid or unenforceable
term or provision shall be deemed replaced by a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision.
Section 7.9 Right to Determine Tender Confidentially. In
connection with any tender or exchange offer for all or any portion of the
outstanding Common Stock, subject to compliance with all applicable restrictions
on Transfer in this Agreement, the Plan of Incorporation or any other agreement
with GS Inc., each Covered Person will have the right to determine
confidentially whether such Covered Person's Covered Shares will be tendered in
such tender or exchange offer.
Section 7.10 No Third-Party Rights. Nothing expressed or referred
to in this Agreement will be construed to give any person other than the parties
to this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
Section 7.11 Section Headings. The headings of sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation.
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24
Section 7.12 Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument.
-24-
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IN WITNESS WHEREOF, the parties hereto have duly executed or
caused to be duly executed this Agreement as of the dates indicated.
THE GOLDMAN SACHS GROUP, INC.
By_________________________________
Name:
Title:
Dated : May [__], 1999
[Signature Page 1 and Signature Page 2 Follow]
26
Signature Page 1
to
Shareholders' Agreement
Bradley I. Abelow
Paul M. Achleitner
Jonathan R. Aisbitt
Andrew M. Alper
Armen A. Avanessians
David M. Baum
Ron E. Beller
Milton R. Berlinski
Lloyd C. Blankfein
David W. Blood
Peter L. Briger, Jr.
Richard J. Bronks
Lawrence R. Buchalter
Michael J. Carr
Christopher J. Carrera
Mary Ann Casati
Andrew A. Chisholm
Zachariah Cobrinik
Abby Joseph Cohen
Gary D. Cohn
Christopher A. Cole
Carlos A. Cordeiro
Henry Cornell
E. Gerald Corrigan
Jon S. Corzine
Claudio Costamagna
Frank L. Coulson, Jr.
Randolph L. Cowen
Philip M. Darivoff
Timothy D. Dattels
Gavyn Davies
David A. Dechman
Paul C. Deighton
Robert V. Delaney
Joseph Della Rosa
Alexander C. Dibelius
John O. Downing
Connie K. Duckworth
C. Steven Duncker
Gordon E. Dyal
Glenn P. Earle
27
Signature Page 1
to
Shareholders' Agreement (cont.)
Paul S. Efron
J. Michael Evans
W. Mark Evans
Pieter Maarten Feenstra
Lawton W. Fitt
David B. Ford
Edward C. Forst
Christopher G. French
Richard A. Friedman
Joseph D. Gatto
Peter C. Gerhard
Nomi P. Ghez
Joseph H. Gleberman
Richard J. Gnodde
Jeffrey B. Goldenberg
Jacob D. Goldfield
Amy O. Goodfriend
Andrew M. Gordon
Geoffrey T. Grant
Eric P. Grubman
Joseph D. Gutman
Robert S. Harrison
Thomas J. Healey
Sylvain M. Hefes
David B. Heller
Steven M. Heller
David L. Henle
Mary C. Henry
Robert E. Higgins
M. Roch Hillenbrand
Jacquelyn M. Hoffman-Zehner
Robert J. Hurst
Francis J. Ingrassia
Timothy J. Ingrassia
Reuben Jeffery III
Stefan J. Jentzsch
Chansoo Joung
Ann F. Kaplan
Barry A. Kaplan
Robert S. Kaplan
Scott B. Kapnick
28
Signature Page 1
to
Shareholders' Agreement (cont.)
Erland S. Karlsson
Robert J. Katz
Kevin W. Kennedy
Peter D. Kiernan III
Douglas W. Kimmelman
Bradford C. Koenig
Jonathan L. Kolatch
Peter S. Kraus
David G. Lambert
Thomas D. Lasersohn
Anthony D. Lauto
Matthew G. L'Heureux
Lawrence H. Linden
Robert Litterman
Robert H. Litzenberger
Jonathan M. Lopatin
Michael R. Lynch
Peter G.C. Mallinson
Ronald G. Marks
Eff W. Martin
David J. Mastrocola
John P. McNulty
E. Scott Mead
Sanjeev K. Mehra
T. Willem Mesdag
Eric M. Mindich
Steven T. Mnuchin
Masanori Mochida
Karsten N. Moller
Thomas K. Montag
Wayne L. Moore
Robert B. Morris III
Michael P. Mortara
Sharmin Mossavar-Rahmani
Edward A. Mule
Philip D. Murphy
Thomas S. Murphy, Jr.
Avi M. Nash
Daniel M. Neidich
Kipp M. Nelson
Robin Neustein
29
Signature Page 1
to
Shareholders' Agreement (cont.)
Suzanne M. Nora Johnson
Michael E. Novogratz
Alok Oberoi
Terence J. O'Neill
Timothy J. O'Neill
Donald C. Opatrny, Jr.
Robert J. O'Shea
Greg M. Ostroff
Terence M. O'Toole
Robert J. Pace
Gregory K. Palm
Henry M. Paulson, Jr.
Scott M. Pinkus
Timothy C. Plaut
Wiet H. Pot
John J. Powers
Michael A. Price
Scott S. Prince
Stephen D. Quinn
Michael G. Rantz
Girish V. Reddy
Arthur J. Reimers III
James P. Riley, Jr.
Simon M. Robertson
J. David Rogers
Emmanuel Roman
Ralph F. Rosenberg
Stuart M. Rothenberg
Michael S. Rubinoff
Richard M. Ruzika
John C. Ryan
Michael D. Ryan
Richard A. Sapp
Joseph Sassoon
Tsutomu Sato
Muneer A. Satter
Jonathan S. Savitz
Peter Savitz
Howard B. Schiller
Antoine Schwartz
Eric S. Schwartz
30
Signature Page 1
to
Shareholders' Agreement (cont.)
Mark Schwartz
Charles B. Seelig, Jr.
Steven M. Shafran
Richard S. Sharp
James M. Sheridan
Richard G. Sherlund
Michael S. Sherwood
Howard A. Silverstein
Dinakar Singh
Christian J. Siva-Jothy
Cody J. Smith
Jonathan S. Sobel
Marc A. Spilker
Daniel W. Stanton
Esta E. Stecher
Fredric E. Steck
Robert K. Steel
Hsueh J. Sung
Peter D. Sutherland
Gene T. Sykes
Mark R. Tercek
Donald F. Textor
John A. Thain
John L. Thornton
John R. Tormondsen
Leslie C. Tortora
John L. Townsend III
Byron D. Trott
Robert B. Tudor III
Thomas E. Tuft
Malcolm B. Turnbull
John E. Urban
Lee G. Vance
David A. Viniar
Barry S. Volpert
George H. Walker
Thomas B. Walker III
Patrick J. Ward
John S. Weinberg
Peter A. Weinberg
George W. Wellde, Jr.
31
Signature Page 1
to
Shareholders' Agreement (cont.)
Anthony G. Williams
Gary W. Williams
Kendrick R. Wilson III
Jon Winkelried
Steven J. Wisch
Richard E. Witten
Tracy R. Wolstencroft
Yasuyo Yamazaki
Danny O. Yee
Michael J. Zamkow
Yoel Zaoui
Gregory H. Zehner
Jide J. Zeitlin
Joseph R. Zimmel
Barry L. Zubrow
Mark A. Zurack
By:_________________________
Name:
Title: Attorney-in-Fact
Dated: May [__], 1999
32
Signature Page 2
to
Shareholders' Agreement
____________________________
Name:
Dated: May [__], 1999
33
APPENDIX A
PARTIES TO THE SHAREHOLDERS' AGREEMENT
NAME
Bradley I. Abelow
Peter C. Aberg
Paul M. Achleitner
Jonathan R. Aisbitt
Elliot M. Alchek
Andrew M. Alper
Philippe J. Altuzarra
Kazutaka P. Arai
David M. Atkinson
Mitchel J. August
Armen A. Avanessians
John S. Barakat
Barbara J. Basser-Bigio
David M. Baum
Robert A. Beckwitt
Jonathan A. Beinner
Ron E. Beller
Tarek M. Ben Halim
Jaime I. Bergel
Todd L. Bergman
Milton R. Berlinski
Andrew S. Berman
Frances R. Bermanzohn
Jeffrey J. Bernstein
Robert A. Berry
Jean-Luc Biamonti
James J. Birch
Lloyd C. Blankfein
David W. Blood
David R. Boles
David A. Bolotsky
Charles W.A. Bott
Charles C. Bradford III
Benjamin S. Bram
Thomas C. Brasco
Peter L. Briger Jr.
34
APPENDIX A (CONT.)
Craig W. Broderick
Richard J. Bronks
Charles K. Brown
Vern J. Brownell
Peter D. Brundage
Lawrence R. Buchalter
Steven M. Bunson
Timothy B. Bunting
Calvert C. Burkhart
Michael S. Burton
George H. Butcher III
Lawrence V. Calcano
John D. Campbell
Richard M. Campbell-Breeden
Anthony H. Carpet
Michael J.Carr
Christopher J. Carrera
Virginia E. Carter
Calvin R. Carver, Jr.
Mary Ann Casati
Chris Casciato
Douglas W. Caterfino
Michael J. Certo
Varkki P. Chacko
David K. Chang
Thomas P. Chang
Sacha A. Chiaramonte
Andrew A. Chisholm
Robert J. Christie
Peter T. Cirenza
Kent A. Clark
Zachariah Cobrinik
Abby Joseph Cohen
Gary D. Cohn
Christopher A. Cole
Timothy J. Cole
Laura C. Conigliaro
Frank T. Connor
Donna L. Conti
Edith W. Cooper
Philip A. Cooper
John W. Copeland
Carlos A. Cordeiro
35
APPENDIX A (CONT.)
Henry Cornell
E. Gerald Corrigan
Jon S. Corzine
Claudio Costamagna
Frank L. Coulson, Jr.
Randolph L. Cowen
Neil D. Crowder
John P. Curtin Jr.
John W. Curtis
Stephen C. Daffron
John S. Daly
Philip M. Darivoff
Matthew S. Darnall
Timothy D. Dattels
Gavyn Davies
David A. Dechman
Paul C. Deighton
Juan A. Del Rivero
Robert V. Delaney
Joseph Della Rosa
Emanuel Derman
Andrew C. Devenport
Stephen D. Dias
Alexander C. Dibelius
Simon P. Dingemans
Sandra D'Italia
Paula A. Dominick
Noel B. Donohoe
Jana Doty
Robert G. Doumar, Jr.
John O. Downing
Michael B. Dubno
Connie K. Duckworth
William C. Dudley
Matthieu B. Duncan
C. Steven Duncker
Christopher N. Dunn
Karlo J. Duvnjak
Jay S. Dweck
Gordon E. Dyal
Isabelle Ealet
Glenn P. Earle
Paul S. Efron
36
APPENDIX A (CONT.)
Herbert E. Ehlers
Alexander S. Ehrlich
John E. Eisenberg
Glenn D. Engel
Michael P. Esposito
George C. Estey
Mark D. Ettenger
J. Michael Evans
W. Mark Evans
Charles P. Eve
Paul D. Farrell
Elizabeth C. Fascitelli
Pieter Maarten Feenstra
Steven M. Feldman
Laurie R. Ferber
Robert P. Fisher, Jr.
Lawton W. Fitt
Stephen C. Fitzgerald
David N. Fleischer
Jeffrey S. Flug
David B. Ford
Eric O. Fornell
Edward C. Forst
Oliver L. Frankel
Matthew T. Fremont-Smith
Christopher G. French
Richard A. Friedman
C. Douglas Fuge
Joseph D. Gatto
Emmanuel Gavaudan
Eduardo B. Gentil
Peter C. Gerhard
Nomi P. Ghez
H. John Gilbertson, Jr.
Alan R. Gillespie
Joseph H. Gleberman
Richard J. Gnodde
Jeffrey B. Goldenberg
Jacob D. Goldfield
Amy O. Goodfriend
Jay S. Goodgold
Andrew M. Gordon
Robert D. Gottlieb
37
APPENDIX A (CONT.)
Geoffrey T. Grant
William M. Grathwohl
David J. Greenwald
Louis S. Greig
Christopher Grigg
Douglas C. Grip
Eric P. Grubman
Celeste A. Guth
Joseph D. Gutman
Erol Hakanoglu
Roger C. Harper
Charles T. Harris III
Robert S. Harrison
Shelley A. Hartman
Nobumichi Hattori
Stephen J. Hay
Walter H. Haydock
Isabelle Hayen
Thomas J. Healey
John P. Heanue
Robert C. Heathcote
Sylvain M. Hefes
David B. Heller
Steven M. Heller
R. Douglas Henderson
David L. Henle
Mary C. Henry
Robert E. Higgins
M. Roch Hillenbrand
Maykin Ho
Timothy E. Hodgson
Jacquelyn M. Hoffman-Zehner
Christopher G. Hogg
Gregory T. Hoogkamp
Robert D. Hormats
Robert G. Hottensen, Jr.
James A. Hudis
Terry P. Hughes
Bimaljit S. Hundal
Robert J. Hurst
Francis J. Ingrassia
Timothy J. Ingrassia
Masahiro Iwano
38
APPENDIX A (CONT.)
William L. Jacob III
Mark M. Jacobs
Richard I. Jaffee
Reuben Jeffery III
Stefan J. Jentzsch
Dan H. Jester
Daniel J. Jick
Robert H. Jolliffe
Robert C. Jones
Reginald L. Jones III
Chansoo Joung
Andrew J. Kaiser
Donald G. Kane II
Ann F. Kaplan
Barry A. Kaplan
David A. Kaplan
Jason S. Kaplan
Robert S. Kaplan
Scott B. Kapnick
Erland S. Karlsson
Carolyn F. Katz
Robert J. Katz
Sofia Katzap
Haruo Kawamura
Tetsuya Kawano
Sion P. Kearsey
R. Mark Keating
John L. Kelly
Kevin M. Kelly
Kevin W. Kennedy
Peter D. Kiernan III
James T. Kiernan, Jr.
Sun Bae Kim
Douglas W. Kimmelman
Colin E. King
Robert C. King, Jr.
Adrian P. Kingshott
Ewan M. Kirk
Michael K. Klingher
Craig A. Kloner
Bradford C. Koenig
Mark J. Kogan
Jonathan L. Kolatch
39
APPENDIX A (CONT.)
David J. Kostin
Koji Kotaka
Peter S. Kraus
Christoph M. Ladanyi
David G. Lambert
Pierre F. Lapeyre Jr.
Bruce M. Larson
Thomas D. Lasersohn
Anthony D. Lauto
Susan R. Leadem
Andrew D. Learoyd
Donald C. Lee
Kenneth H. M. Leet
Paulo C. Leme
Hughes B. Lepic
Alan B. Levande
Thomas B. Lewis, Jr.
Mark E. Leydecker
Matthew G. L'Heureux
Aaron D. Liberman
Gwen R. Libstag
Stephen C. Lichtenauer
Roger A. Liddell
Richard J. Lieb
Mitchell J. Lieberman
Josephine Linden
Lawrence H. Linden
Robert Litterman
Robert H. Litzenberger
David J. Lockwood
Jonathan M. Lopatin
Francisco Lopez-Balboa
Victor M. Lopez-Balboa
Antigone Loudiadis
C. Richard Lucy
Michael C. Luethke
Michael R. Lynch
Shogo Maeda
John A. Mahoney
Sean O. Mahoney
Jun Makihara
Russell E. Makowsky
Peter G.C. Mallinson
40
APPENDIX A (CONT.)
Charles G. R. Manby
Barry A. Mannis
Richard J. Markowitz
Ronald G. Marks
Robert J. Markwick
Eff W. Martin
Jacques Martin
John J. Masterson
David J. Mastrocola
Kathy M. Matsui
Tadanori Matsumura
Heinz Thomas Mayer
Richard X. McArdle
Theresa E. McCabe
Joseph M. McConnell
Mark E. McGoldrick
Stephen J. McGuinness
John C. McIntire
John W. McMahon
Geraldine F. McManus
Audrey A. McNiff
Anne Welsh McNulty
John P. McNulty
E. Scott Mead
David M. Meerschwam
Sanjeev K. Mehra
Richard W. Meister
Amos Meron
T. Willem Mesdag
Kenneth A. Miller
Therese L. Miller
James E. Milligan
Eric M. Mindich
Peter A. Mindnich
Edward S. Misrahi
Steven T. Mnuchin
Kurt C. Mobley
Masanori Mochida
Karsten N. Moller
Thomas K. Montag
Wayne L. Moore
Yukihiro Moroe
Robert B. Morris III
41
APPENDIX A (CONT.)
Michael P. Mortara
Matthias R. Mosler
Jeffrey M. Moslow
Sharmin Mossavar-Rahmani
Ian Mukherjee
Edward A. Mule'
Donald J. Mulvihill
Patrick E. Mulvihill
Richard A. Murley
Philip D. Murphy
Thomas S. Murphy, Jr.
Gaetano J. Muzio
Michiya Nagai
Kiyotaka Nakamura
Avi M. Nash
Trevor Nash
Warwick M. Negus
Daniel M. Neidich
Kipp M. Nelson
Robin Neustein
Duncan L. Niederauer
Suzanne M. Nora Johnson
Christopher K. Norton
Michael E. Novogratz
Jay S. Nydick
Alok Oberoi
Jinsuk T. Oh
John C. O'Hara
Terence J. O'Neill
Timothy J. O'Neill
Richard T. Ong
Ronald M. Ongaro
Donald C. Opatrny, Jr.
Daniel B. O'Rourke
Robert J. O'Shea
Greg M. Ostroff
Terence M. O'Toole
Robert J. Pace
Robert N. Packer
Gregory K. Palm
Mukesh K. Parekh
Melissa B. Patrusky
Henry M. Paulson, Jr.
42
APPENDIX A (CONT.)
Alberto M. Piedra Jr.
Stephen R. Pierce
Philip J. Pifer
Scott M. Pinkus
Timothy C. Plaut
Andrea Ponti
Wiet H. Pot
Michael J. Poulter
John J. Powers
Michael A. Price
Scott S. Prince
Stephen D. Quinn
John J. Rafter
Dioscoro-Roy I. Ramos
Charlotte P. Ransom
Michael G. Rantz
Joseph Ravitch
Girish V. Reddy
Arthur J. Reimers
Anthony John Reizenstein
James P. Riley, Jr.
Simon M. Robertson
J. David Rogers
John F.W. Rogers
Emmanuel Roman
Pamela P. Root
Ralph F. Rosenberg
Jacob D. Rosengarten
Stuart M. Rothenberg
Michael S. Rubinoff
Paul M. Russo
Richard M. Ruzika
John C. Ryan
Michael D. Ryan
J. Michael Sanders
Allen Sangines-Krause
Richard A. Sapp
Joseph Sassoon
Tsutomu Sato
Muneer A. Satter
Jonathan S. Savitz
Peter Savitz
P. Sheridan Schechner
43
APPENDIX A (CONT.)
Gary B. Schermerhorn
Mitchell I. Scherzer
Howard B. Schiller
Antoine Schwartz
Eric S. Schwartz
Mark Schwartz
Steven M. Scopellite
David J. Scudellari
Charles B. Seelig, Jr.
Steven M. Shafran
Richard S. Sharp
John P. Shaughnessy
Robert J. Shea, Jr.
James M. Sheridan
Richard G. Sherlund
Michael S. Sherwood
Howard A. Silverstein
Richard P. Simon
Victor R. Simone, Jr.
Dinakar Singh
Ravi Sinha
Allen W. Sinsheimer
Edward M. Siskind
Christian J. Siva-Jothy
Mark F. Slaughter
Cody J Smith
Michael M. Smith
Sarah E. Smith
Randolph C. Snook
Jonathan S. Sobel
Judah C. Sommer
Theodore T. Sotir
Marc A. Spilker
Daniel W. Stanton
Esta E. Stecher
Fredric E. Steck
Robert K. Steel
Robert S. Stellato
Raymond S. Stolz
Steven H. Strongin
Andrew J. Stuart
Patrick Sullivan
Hsueh J. Sung
44
APPENDIX A (CONT.)
George M. Suspanic
Peter D. Sutherland
Gene T. Sykes
Gary A. Syman
John H. Taylor
Robert E. Taylor
Greg W. Tebbe
Mark R. Tercek
Donald F. Textor
John A. Thain
John L. Thornton
Daisuke Toki
John R. Tormondsen
Leslie C. Tortora
John L. Townsend, III
Mark J. Tracey
Byron D. Trott
Michael A. Troy
Robert B. Tudor III
Thomas E. Tuft
Barry S. Turkanis
Malcolm B. Turnbull
Harkanwar Uberoi
Kaysie P. Uniacke
John E. Urban
Hugo H. Van Vredenburch
Lee G. Vance
John J. Vaske
Oksana Vayner-Ryklin
David A. Viniar
Barry S. Volpert
George H. Walker
Thomas B. Walker III
Nicholas J. Walsh
David R. Walton
Hsueh-Ming Wang
Patrick J. Ward
Haruko Watanuki
Edward F. Watts Jr.
David M. Weil
John S. Weinberg
Peter A. Weinberg
Mark S. Weiss
45
APPENDIX A (CONT.)
George W. Wellde, Jr.
Bradley W. Wendt
Peter S. Wheeler
Barbara A. White
A. Carver Wickman
Susan A. Willetts
Anthony G. Williams
Gary W. Williams
Todd A. Williams
Kendrick R. Wilson III
Jon Winkelried
Steven J. Wisch
Richard E. Witten
Tracy R. Wolstencroft
Zi Wang Xu
Tetsufumi Yamakawa
Yasuyo Yamazaki
Danny O. Yee
Jaime E. Yordan
W. Thomas York Jr.
Michael J. Zamkow
Paolo Zannoni
Yoel Zaoui
Gregory H. Zehner
Jide J. Zeitlin
Joan H. Zief
Joseph R. Zimmel
James P. Ziperski
Barry L. Zubrow
Mark A. Zurack