-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GgmjEbecsoxHFfbblljB3pBUlIbpcoAKQbxCuUfE2DWwhe5UqhKb5RgbrqStp5fn 3BHizQ9/uiQl5m5U2WFiTA== 0000950123-04-007372.txt : 20040614 0000950123-04-007372.hdr.sgml : 20040611 20040614173107 ACCESSION NUMBER: 0000950123-04-007372 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20040614 GROUP MEMBERS: GROUP MEMBERS LISTED IN FILING SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1128 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56295 FILM NUMBER: 04862455 BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1128 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 y98194sc13dza.txt AMENDMENT #53 TO SCHEDULE 13D SECURITIES EXCHANGE COMMISSION Washington, D.C. 20549 File No. 005-56295 ----------------------------------------------------- SCHEDULE 13D/A (Rule 13d-101) Amendment No. 53 INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) The Goldman Sachs Group, Inc. --------------------- (Name of Issuer) Common Stock, par value $.01 per share ---------------------------------------- (Title of Class of Securities) 38141G 104 --------------------- (CUSIP Number) Kenneth L. Josselyn Beverly L. O'Toole The Goldman Sachs Group, Inc. 85 Broad Street New York, New York 10004 Telephone: (212) 902-1000 -------------------- (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications) June 8, 2004 -------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. (Continued on following pages) - ------------------------------ CUSIP NO. 38141G 10 4 13D - ------------------------------ - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: Each of the persons identified on Appendix A. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP As to a group consisting solely of Covered Persons(1) (a) [x] As to a group consisting of persons other than Covered Persons (b) [x] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: OO as to Covered Shares(1), OO and PF as to Uncovered Shares(2) (Applies to each person listed on Appendix A.) - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEM 2(d) OR 2(e)(Applies to each person listed on Appendix A.) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION United States unless otherwise indicated on Appendix A. - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER (See Item 6) NUMBER OF As to Covered Shares, 0 SHARES As to Uncovered Shares, as stated in Appendix A BENEFICIALLY ---------------------------------------------------------------- OWNED BY 8. SHARED VOTING POWER (See Item 6) (Applies to each REPORTING person listed on Appendix A.) PERSON 119,731,216 Covered Shares held by Covered Persons WITH 21,802 Uncovered Shares held by Covered Persons(3) 930,987 other Uncovered Shares held by Covered Persons(4) ---------------------------------------------------------------- 9. SOLE DISPOSITIVE POWER (See Item 6) As to Covered Shares, less than 1% As to Uncovered Shares, as stated in Appendix A ---------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER (See Item 6): As to Covered Shares, 0 As to Uncovered Shares, as stated in Appendix A - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 120,684,005(5) - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.36% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: OO as to persons listed in Appendix A under the captions "Trusts" and "Limited Liability Companies"; PN as to persons listed in Appendix A under the caption "Partnerships"; CO as to persons listed in Appendix A under the caption "Corporations"; IN as to all other persons listed in Appendix A. - ------------------------- (1) For a definition of this term, please see Item 2. (2) For a definition of this term, please see Item 3. (3) These are Uncovered Shares also described in Row 7 which each Covered Person is deemed to beneficially own by application of Rule 13d-5(b)(1), but do not include the Uncovered Shares described in note 4. Each Covered Person disclaims beneficial ownership of Uncovered Shares held by each other Covered Person. (4) These are Uncovered Shares held by 44 private charitable foundations established by 44 Covered Persons each of whom is a co-trustee of one or more of such private charitable foundations and may be deemed to beneficially own such Uncovered Shares. Each other Covered Person may be deemed to beneficially own such Uncovered Shares by application of Rule 13d-5(b)(1). Each such Covered Person disclaims beneficial ownership of such Uncovered Shares, and each other Covered Person also disclaims beneficial ownership of such Uncovered Shares. (5) Of these shares, 35,911,825 are deemed beneficially owned under Rule 13d-3(d)(1) because a Covered Person has the right to acquire beneficial ownership within 60 days of the date hereof. See Annex D for a description of these shares. The remaining 84,772,180 shares are beneficially owned by the Covered Persons as of the date hereof within the meaning of Rule 13d-3(a). 2 APPENDIX A
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ---------- ------ ------ ------ ------ Julian D. Abel UK 0 0 0 0 Bradley I. Abelow 0 0 0 0 Peter C. Aberg 0 0 0 0 Daniel A. Abut Argentina 0 0 0 0 Hilary E. Ackermann 0 0 0 0 John J. Adair 0 0 0 0 Jeffrey D. Adams 0 0 0 0 Alberto F. Ades Argentina 0 0 0 0 Ben I. Adler 0 0 0 0 Olusegun O. Aganga UK 0 0 0 0 Mark E. Agne 0 0 0 0 Gregory A. Agran 0 0 0 0 Raanan A. Agus 0 0 0 0 Syed H. Ahmad Pakistan 0 0 0 0 Yusuf A. Aliredha Bahrain 0 0 0 0 Philippe J. Altuzarra France 0 0 0 0 Ignacio Alvarez-Rendueles Spain 0 0 0 0 Rebecca Amitai 0 0 0 0 Thomas K. Amster 0 0 0 0 Elizabeth D. Anderson 0 0 0 0 Jason R. Anderson 0 0 0 0 John G. Andrews USA/UK 0 0 0 0 Francois Andriot France 0 0 0 0 Douglas M. Angstrom 0 0 0 0 Arnaud M. Apffel France 0 0 0 0 Lori B. Appelbaum 0 0 0 0 William W. Archer 0 0 0 0 Jesus A. Arias Spain 0 0 0 0 Philip S. Armstrong UK 0 0 0 0 Anton J. Arriola Spain 0 0 0 0 John A. Ashdown UK 0 0 0 0 Akio Asuke Japan 0 0 0 0 David M. Atkinson UK 0 0 0 0 Neil Z. Auerbach 0 0 0 0 Armen A. Avanessians 0 0 0 0 Dean C. Backer 0 0 0 0 William A. Badia 0 0 0 0 Charles Baillie 0 0 0 0 Bernardo Bailo Italy 0 0 0 0 Andrew G. Baird UK 0 0 0 0 Mona H. Baird 0 0 0 0 Michiel J. Bakker The Netherlands 0 0 0 0 Mark E. Bamford 0 0 0 0 William J. Bannon 0 0 0 0 John S. Barakat 0 0 0 0 Indrajit Bardhan India 0 0 0 0 Scott B. Barringer 0 0 0 0 Steven M. Barry 0 0 0 0
3
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ---------- ------ ------ ------ ------ Christopher M. Barter 0 0 0 0 Stacy Bash-Polley 0 0 0 0 Gareth W. Bater UK 0 0 0 0 Andrew T. Bednar 0 0 0 0 Frank A. Bednarz 0 0 0 0 Jonathan A. Beinner 0 0 0 0 Douglas S. Bell UK 0 0 0 0 Janet L. Bell 0 0 0 0 Driss Ben-Brahim Morocco 0 0 0 0 Jordan M. Bender 0 0 0 0 Anna Maria J. Bentley UK 0 0 0 0 Susan M. Benz 0 0 0 0 Kenneth Berents 0 0 0 0 Michael G. Berini 0 0 0 0 Milton R. Berlinski The Netherlands 0 0 0 0 Andrew S. Berman 0 0 0 0 Frances R. Bermanzohn 0 0 0 0 Paul D. Bernard 0 0 0 0 Stuart N. Bernstein 0 0 0 0 Robert A. Berry UK 0 0 0 0 John D. Bertuzzi 0 0 0 0 Elizabeth E. Beshel 0 0 0 0 Andrew M. Bevan UK 0 0 0 0 Jean-Luc Biamonti Monaco 0 0 0 0 James J. Birch UK 0 0 0 0 Lloyd C. Blankfein 0 0 0 0 Abraham Bleiberg Mexico 0 0 0 0 Randall A. Blumenthal 0 0 0 0 David R. Boles 0 0 0 0 Marjorie Boliscar 0 0 0 0 Oliver R. Bolitho UK 0 0 0 0 Michael F. Bonte-Friedheim Germany 0 0 0 0 Johannes M. Boomaars The Netherlands 0 0 0 0 Douglas L. Borden 0 0 0 0 Antonio Borges Portugal 0 0 0 0 J. Theodore Borter 0 0 0 0 Alastair M. Borthwick UK 0 0 0 0 Alison L. Bott UK 0 0 0 0 Charles W.A. Bott UK 0 0 0 0 Sally A. Boyle UK 0 0 0 0 George M. Brady 0 0 0 0 Mairtin Brady Ireland 0 0 0 0 Lester R. Brafman 0 0 0 0 Benjamin S. Bram 0 0 0 0 Graham Branton UK 0 0 0 0 Thomas C. Brasco 0 0 0 0 Alan J. Brazil 0 0 0 0 John Breyo 0 0 0 0 Timothy J. Bridges UK 0 0 0 0 Victoria A. Bridges 0 0 0 0
4
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ---------- ------ ------ ------ ------ Craig W. Broderick 0 0 0 0 Richard J. Bronks UK 0 0 0 0 Julia A. Bronson 0 0 0 0 Holger Bross Germany 0 0 0 0 Cynthia A. Brower 0 0 0 0 Kathleen Brown 0 0 0 0 Melissa R. Brown 0 0 0 0 Peter D. Brundage 0 0 0 0 John J. Bu 0 0 0 0 David D. Buckley UK 0 0 0 0 Mark J. Buisseret UK 0 0 0 0 Steven M. Bunson 0 0 0 0 Timothy B. Bunting UK 0 0 0 0 Nicholas F. Burgin 0 0 0 0 Andrew J. Burke-Smith Canada 0 0 0 0 Randall S. Burkert 142 0 142 0 Michael S. Burton UK 0 0 0 0 Joseph M. Busuttil 0 0 0 0 George H. Butcher III 0 0 0 0 Mary D. Byron 0 0 0 0 Jin Yong Cai China 0 0 0 0 Sebastiano Calabro 0 0 0 0 Lawrence V. Calcano 0 0 0 0 Elizabeth V. Camp 0 0 0 0 John D. Campbell 0 0 0 0 Richard M. Campbell-Breeden UK 0 0 0 0 Philippe L. Camu Belgium 0 0 0 0 David E. Cantillon Ireland 0 0 0 0 Sally W. Cantwell UK 0 600(6) 0 600(6) Gerald J. Cardinale 0 0 0 0 Mark M. Carhart 0 0 0 0 Mariafrancesca Carli Italy 0 0 0 0 Valentino D. Carlotti 0 0 0 0 Anthony H. Carpet 0 0 0 0 Michael J. Carr 0 0 0 0 Mark Carroll 0 0 0 0 Virginia E. Carter 0 0 0 0 Chris Casciato 0 0 0 0 John W. Cembrook 0 0 0 0 Eduardo Centola Brazil 0 0 0 0 Robert J. Ceremsak, Jr. 0 0 0 0 Lik Shuen David Chan Hong Kong 0 0 0 0 Kuo-Chun Chang Taiwan 0 0 0 0 Amy L. Chasen 0 0 0 0 Sacha A. Chiaramonte Germany 0 0 0 0 Andrew A. Chisholm Canada 0 0 0 0 W. Reed Chisholm II 499 0 499 0
- ----------------- (6) Shared with family members. 5
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ---------- ------ ------ ------ ------ Thomas V. Cholnoky 0 0 0 0 Robert J. Christie 0 0 0 0 Jane P. Chwick 0 0 0 0 James R. Cielinski 0 0 0 0 Peter T. Cirenza 0 0 0 0 Geoffrey G. Clark Canada 0 0 0 0 James B. Clark 0 0 0 0 Kent A. Clark Canada 0 0 0 0 Alexander Classen Switzerland 0 0 0 0 Catherine M. Claydon Canada 0 0 0 0 Kelly C. Coffey 0 0 0 0 Abby Joseph Cohen 0 0 0 0 Alan M. Cohen 0 0 0 0 Lawrence A. Cohen 200 0 200 0 Marc I. Cohen 0 0 0 0 Gary D. Cohn 0 0 0 0 Christopher A. Cole 0 0 0 0 Timothy J. Cole 0 0 0 0 Colin Coleman South Africa 0 0 0 0 Marcus R. Colwell 0 0 0 0 Peter H. Comisar 0 0 0 0 Laura C. Conigliaro 0 0 0 0 Thomas V. Conigliaro 677 0 677 0 William J. Conley, Jr. 417 0 417 0 Thomas G. Connolly Ireland/USA 0 0 0 0 Frank T. Connor 0 0 0 0 Karen R. Cook UK 0 0 0 0 Edith W. Cooper 0 0 0 0 Philip A. Cooper 0 0 0 0 Kenneth W. Coquillette 0 0 0 0 Carlos A. Cordeiro 0 0 0 0 Colin J. Corgan 0 0 0 0 David W. Corley 0 0 0 0 Thomas W. Cornacchia 0 0 0 0 Henry Cornell 0 0 0 0 E. Gerald Corrigan 0 0 0 0 Claudio Costamagna Italy 0 0 0 0 Marta Z. Cotton 0 0 0 0 James A. Coufos 0 0 0 0 Frank L. Coulson, Jr. 0 0 0 0 Kenneth Courtis 0 0 0 0 Eric J. Coutts UK 0 0 0 0 Michael Covell UK 0 0 0 0 Randolph L. Cowen 0 0 0 0 Brahm S. Cramer Canada 0 0 0 0 Nicholas P. Crapp UK 0 0 0 0 Michael J. Crinieri 0 0 0 0 Craig W. Crossman Australia 0 0 0 0 Neil D. Crowder 0 0 0 0 Michael L. Crowl 0 0 0 0
6
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ---------- ------ ------ ------ ------ Eduardo A. Cruz 0 0 0 0 Jeffrey R. Currie 0 0 0 0 John P. Curtin, Jr. 0 0 0 0 John W. Curtis 0 0 0 0 Matthew H. Cyzer UK 0 0 0 0 Michael D. Daffey Australia 0 0 0 0 Stephen C. Daffron 0 0 0 0 Linda S. Daines 0 0 0 0 Paul B. Daitz 0 0 0 0 John S. Daly Ireland 0 0 0 0 Stephen D. Daniel Canada 0 0 0 0 Philip M. Darivoff 0 0 0 0 Frederick C. Darling 0 0 0 0 Matthew S. Darnall 0 0 0 0 David H. Dase 0 0 0 0 Gavyn Davies UK 0 0 0 0 Stephen Davies UK 0 0 0 0 Katherine R. Davisson 0 0 0 0 Oral W. Dawe Canada 0 0 0 0 Diego De Giorgi Italy 0 0 0 0 Michael G. De Lathauwer Belgium 0 0 0 0 Francois-Xavier De Mallmann France/Switzerland 0 0 0 0 Jean A. De Pourtales France/UK 0 0 0 0 Giorgio De Santis Italy 0 0 0 0 Luigi de Vecchi Italy 0 0 0 0 Daniel L. Dees 0 0 0 0 Bradley S. DeFoor 0 0 0 0 Mark Dehnert 0 0 0 0 Paul C. Deighton UK 0 0 0 0 Alvaro del Castano Spain 0 0 0 0 James Del Favero Australia 0 0 0 0 Juan A. Del Rivero Spain 0 0 0 0 Thomas F. Dempsey 0 0 0 0 Roger E. Denby-Jones UK 0 0 0 0 Neil V. DeSena 0 0 0 0 Martin R. Devenish UK 0 0 0 0 Andrew C. Devenport UK 0 0 0 0 Stephen D. Dias UK 0 0 0 0 Armando A. Diaz 0 0 0 0 Alexander C. Dibelius Germany 0 0 0 0 David G. Dick UK 0 0 0 0 James D. Dilworth 0 0 0 0 Simon P. Dingemans UK 0 0 0 0 Joseph P. DiSabato 0 0 0 0 Michele I. Docharty 0 0 0 0 Paula A. Dominick 0 0 0 0 Noel B. Donohoe Ireland 0 0 0 0 Suzanne O. Donohoe 0 0 0 0 James H. Donovan 0 0 0 0 Jana Hale Doty 0 0 0 0
7
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ---------- ------ ------ ------ ------ Robert G. Doumar, Jr. 0 0 0 0 Thomas M. Dowling 0 0 0 0 Mario Draghi Italy 0 0 0 0 Michael B. Dubno 0 0 0 0 William C. Dudley 0 0 0 0 Donald J. Duet 0 0 0 0 Brian J. Duffy 0 0 0 0 Brian Duggan 0 0 0 0 Karlo J. Duvnjak Canada 0 0 0 0 Jay S. Dweck 0 0 0 0 Michael L. Dweck 0 0 0 0 Gordon E. Dyal 0 0 0 0 Isabelle Ealet France 0 0 0 0 Glenn P. Earle UK 0 0 0 0 David C. Earling 0 0 0 0 Seaborn S. Eastland 0 0 0 0 Kenneth M. Eberts III 0 0 0 0 Paul S. Efron 0 0 0 0 Herbert E. Ehlers 0 0 0 0 Robert K. Ehudin 0 0 0 0 John E. Eisenberg 0 0 0 0 Edward K. Eisler Austria 0 0 0 0 Jason H. Ekaireb UK 0 0 0 0 Gregory H. Ekizian 0 0 0 0 Kathy G. Elsesser 0 0 0 0 Glenn D. Engel 0 0 0 0 Peter C. Enns Canada 0 0 0 0 Katherine B. Enquist 0 0 0 0 L. Brooks Entwistle 0 0 0 0 Earl S. Enzer 0 0 0 0 Christopher H. Eoyang 0 0 0 0 Christian Erickson 0 0 0 0 Fred W. Esiri UK 0 0 0 0 James P. Esposito 0 0 0 0 Michael P. Esposito 0 0 0 0 George C. Estey Canada 0 0 0 0 Bruce J. Evans 0 0 0 0 J. Michael Evans Canada 0 0 0 0 Charles P. Eve UK 0 0 0 0 Elizabeth C. Fascitelli 0 0 0 0 Jeffrey F. Fastov 0 0 0 0 Douglas L. Feagin 0 0 0 0 Regina M. Feeney 0 0 0 0 Pieter Maarten Feenstra The Netherlands 0 0 0 0 Norman Feit 0 0 0 0 Steven M. Feldman 0 0 0 0 Laurie R. Ferber 0 0 0 0 Luca D. Ferrari 0 0 0 0 John A. Ferro, Jr. 0 0 0 0 Gail S. Fierstein 0 0 0 0
8
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ---------- ------ ------ ------ ------ Gregory A. Finck 0 0 0 0 David A. Fishman 0 0 0 0 Stephen C. Fitzgerald Australia 0 0 0 0 Daniel M. FitzPatrick 0 0 0 0 James A. Fitzpatrick 0 0 0 0 Pierre-Henri Flamand France 0 0 0 0 Alexander W. Fletcher UK 0 0 0 0 Mark C. Fletcher UK 0 0 0 0 Mark B. Florian 0 0 0 0 Timothy B. Flynn 0 0 0 0 Elisabeth Fontenelli 0 0 0 0 Elizabeth J. Ford 0 0 0 0 Edward C. Forst 0 0 0 0 Colleen A. Foster 0 0 0 0 George B. Foussianes 0 0 0 0 Linda M. Fox 0 0 0 0 Stephen H. Frank 0 0 0 0 Oliver L. Frankel 0 0 0 0 Jeffrey S. Frase 0 0 0 0 Orit P. Freedman Israel 0 0 0 0 Matthew T. Fremont-Smith 0 0 0 0 Christopher G. French UK 0 0 0 0 Timothy G. Freshwater UK 0 0 0 0 Jacob Y. Friedman 0 0 0 0 Richard A. Friedman 0 0 0 0 Kieu L. Frisby 0 0 0 0 Matthias K. Frisch Switzerland 0 0 0 0 Robert K. Frumkes 0 0 0 0 C. Douglas Fuge 0 0 0 0 Shirley Fung UK 0 0 0 0 Timothy T. Furey 0 0 0 0 Enrico S. Gaglioti 0 0 0 0 Timur F. Galen 0 0 0 0 Maryann L. Gallivan 0 2000(7) 0 2000(7) Gonzalo R. Garcia Chile 0 0 0 0 Guillermo Garcia Mexico 0 0 0 0 James R. Garvey Ireland 0 0 0 0 Joseph D. Gatto 0 0 0 0 Richard A. Genna 0 0 0 0 Hywel D. George UK 0 0 0 0 Peter C. Gerhard 0 0 0 0 Kenneth K. Gershenfeld 0 0 0 0 Rajiv A. Ghatalia India 0 0 0 0 Robert R. Gheewalla 0 0 0 0 Scott A. Gieselman 0 0 0 0 Gary T. Giglio 0 0 0 0 H. John Gilbertson, Jr. 0 0 0 0
- --------------------- (7) Shared with family members. 9
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - -------------------------- ---------- ------ ------ ------ ------ Nicholas G. Giordano 0 300(8) 0 300(8) Carson Gleberman 0 0 0 0 Joseph H. Gleberman 0 0 0 0 Justin G. Gmelich 0 0 0 0 Richard J. Gnodde Ireland/ 0 0 0 0 South Africa Jeffrey B. Goldenberg 0 2,860(9) 0 2,860(9) Rachel C. Golder 0 0 0 0 Daniel C. Goldwater UK 0 0 0 0 James S. Golob 0 0 0 0 Gregg A. Gonsalves 0 0 0 0 Larry J. Goodwin 0 0 0 0 Andrew M. Gordon 0 0 0 0 Robert D. Gottlieb 0 0 0 0 Gregory M. Gould 0 0 0 0 Frank J. Governali 0 0 0 0 Lorenzo Grabau Italy 0 0 0 0 Geoffrey T. Grant 0 0 0 0 William M. Grathwohl 0 0 0 0 Pedro Gonzalez Grau Spain 0 0 0 0 Eldridge F. Gray 0 0 0 0 Michael J. Graziano 0 0 0 0 Carmen A. Greco 0 0 0 0 Stefan Green Australia 0 0 0 0 David J. Greenwald 0 0 0 0 Louis S. Greig UK 0 0 0 0 William W. Gridley 0 0 0 0 Peter W. Grieve 0 0 0 0 Christopher Grigg UK 0 0 0 0 Edward Sebastian Grigg UK/France 0 0 0 0 Michael J. Grimaldi 0 0 0 0 Douglas C. Grip 0 0 0 0 Peter Gross 0 0 0 0 David J. Grounsell UK 0 0 0 0 Edward J. Guay 0 0 0 0 Kevin J. Guidotti 0 0 0 0 Arun M. Gunewardena Sri Lanka 0 0 0 0 Vishal Gupta India 0 0 0 0 Celeste A. Guth 0 0 0 0 Vladimir M. Gutin 0 0 0 0 Douglas A. Guzman Canada 0 0 0 0 Erol Hakanoglu Turkey 0 0 0 0 Elizabeth M. Hammack 0 0 0 0 David R. Hansen Australia 0 0 0 0 Jane Hargreaves UK 0 0 0 0 Mary L. Harmon 0 0 0 0 Roger C. Harper 0 0 0 0
- ---------------------- (8) Shared with family members. (9) Shared with family members. 10
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Valerie J. Harrison UK 0 0 0 0 Shelley A. Hartman 0 0 0 0 Paul R. Harvey 0 0 0 0 Taizo Hasebe Japan 0 0 0 0 Rumiko Hasegawa Japan 0 0 0 0 A. John Hass 0 0 0 0 Stephen J. Hay UK 0 0 0 0 Kuniyoshi Hayashi Japan 0 0 0 0 Keith L. Hayes UK 0 0 0 0 Edward A. Hazel 866 300(10) 866 300(10) Robert C. Heathcote UK 0 0 0 0 Sylvain M. Hefes France 0 0 0 0 Douglas C. Heidt 0 0 0 0 David B. Heller 0 0 0 0 William L. Hemphill 0 0 0 0 Ruud G. Hendriks The Netherlands 0 0 0 0 David P. Hennessey 0 0 0 0 Robert D. Henderson 0 0 0 0 David L. Henle 0 600 0 600 Mary C. Henry 0 0 0 0 Benoit Herault France 0 0 0 0 Peter C. Herbert 0 0 0 0 Bruce A. Heyman 0 0 0 0 Stephen Hickey 0 0 0 0 Melina E. Higgins 0 0 0 0 Robert E. Higgins 0 0 0 0 Joanne M. Hill 0 0 0 0 Michael I. Hill UK 0 0 0 0 Donald W. Himpele 0 0 0 0 Kenneth L. Hirsch 0 0 0 0 Kenneth W. Hitchner 0 0 0 0 Maykin Ho 0 0 0 0 Timothy E. Hodgson Canada 0 0 0 0 Axel Hoerger Germany 0 0 0 0 Christopher G. Hogg New Zealand/USA 0 0 0 0 Svein R. Hogset Norway 0 0 0 0 Simon N. Holden UK 0 0 0 0 Margaret J. Holen 0 0 0 0 Daniel E. Holland III 0 0 0 0 Teresa E. Holliday 0 0 0 0 Peter Hollmann Germany 0 0 0 0 Philip Holzer Germany 0 0 0 0 Gregory T. Hoogkamp 0 0 0 0 Sean C. Hoover 0 0 0 0 Shin Horie Japan 0 0 0 0 Jay D. Horine 0 0 0 0 Robert D. Hormats 0 0 0 0
- ----------------------- (10) Shared with family members. 11
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Robert G. Hottensen, Jr. 578 0 578 0 Thomas J. Houle 0 0 0 0 Michael R. Housden UK 0 0 0 0 Robert Howard 0 0 0 0 Mark Howard-Johnson 0 0 0 0 Zu Liu Frederick Hu China 0 0 0 0 Paul J. Huchro 0 0 0 0 James A. Hudis 0 0 0 0 Terry P. Hughes Ireland 0 0 0 0 Bimaljit S. Hundal UK 0 0 0 0 Edith A. Hunt 0 0 0 0 Susan J. Hunt UK 0 0 0 0 Janet T. Hurley 0 0 0 0 Fern Hurst 0 0 0 0 Robert J. Hurst 100 0 100 0 Elizabeth A. Husted 0 0 0 0 Walter V. Hutcherson 0 0 0 0 Phillip S. Hylander UK 0 0 0 0 John S. Iglehart 0 0 0 0 Robert F. Incorvaia 0 0 0 0 Toni-Dara Infante 0 0 0 0 Francis J. Ingrassia 0 0 0 0 Timothy J. Ingrassia 0 0 0 0 Zubin P. Irani India 0 0 0 0 Hideki Ishibashi Japan 0 0 0 0 Raymond J. Iwanowski 0 0 0 0 Walter A. Jackson 0 0 0 0 William L. Jacob III 0 0 0 0 James A. Jacobson 0 0 0 0 Richard I. Jaffee 0 0 0 0 Andrew R. Jessop UK 0 0 0 0 Dan H. Jester 0 0 0 0 Thomas Jevon 0 0 0 0 Daniel J. Jick 0 0 0 0 David M. Jimenez-Blanco Spain 0 0 0 0 Peter T. Johnston 523 0 523 0 Andrew J. Jonas 0 0 0 0 Adrian M. Jones Ireland 0 0 0 0 Emerson P. Jones 0 0 0 0 Robert C. Jones 0 0 0 0 Terrence O. Jones 0 0 0 0 William J. Jones 0 0 0 0 Kevin M. Jordan 0 0 0 0 Mei L. Joseph Singapore 0 0 0 0 Roy R. Joseph Guyana 0 0 0 0 Kenneth L. Josselyn 0 0 0 0 Chansoo Joung 0 0 0 0 Andrew J. Kaiser 0 0 0 0 Famiko Kanenobu Japan 0 0 0 0 David A. Kaplan 0 0 0 0
12
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Jason S. Kaplan 0 0 0 0 Robert S. Kaplan 0 0 0 0 Scott B. Kapnick 0 1,666(11) 0 1,666(11) Atul Kapur India 0 0 0 0 James M. Karp 0 0 0 0 Toshinobu Kasai Japan 0 0 0 0 Shunji Katayama Japan 0 0 0 0 Richard Katz 0 0 0 0 Robert J. Katz 0 0 0 0 James C. Katzman 0 0 0 0 David K. Kaugher 0 0 0 0 Alan S. Kava 0 0 0 0 Larry M. Kellerman 0 0 0 0 John L. Kelly 0 0 0 0 Carsten Kengeter Germany 0 0 0 0 Kevin W. Kennedy 0 0 0 0 Gioia M. Kennett 0 0 0 0 James P. Kenney 0 0 0 0 William J. Kenney 0 0 0 0 Thomas J. Kenny 0 0 0 0 Steven E. Kent 0 0 0 0 Steven Kerr 0 0 0 0 John G. Ketterer III 0 0 0 0 Lawrence S. Keusch 0 0 0 0 Rustom N. Khandalavala 0 0 0 0 Philippe Khuong-Huu France 0 0 0 0 Sun Bae Kim Canada 0 0 0 0 Douglas W. Kimmelman 445 0 445 0 Masaaki Kimura South Korea 0 0 0 0 Colin E. King Canada 429 0 429 0 Jonathan S. King UK 0 0 0 0 Robert C. King, Jr. 0 0 0 0 Timothy M. Kingston 0 0 0 0 Shigeki Kiritani Japan 0 0 0 0 Ewan M. Kirk UK 0 0 0 0 Remy Klammers France 0 0 0 0 Michael Klimek 0 0 0 0 Michael K. Klingher 0 0 0 0 Frederick J. Knecht 0 0 0 0 Bradford C. Koenig 0 0 0 0 Andreas Koernlein Germany 0 0 0 0 Mark J. Kogan 0 0 0 0 Yasuro K. Koizumi Japan 0 0 0 0 J. Christopher A. Kojima Canada 0 0 0 0 Kazuaki Kojima Japan 0 0 0 0 Jeffrey A. Kolitch 0 0 0 0 Richard E. Kolman 0 0 0 0
- ----------------------- (11) Shared with family members. 13
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Takahiro Komatsu Japan 0 0 0 0 Robert A. Koort 0 0 0 0 David J. Kostin 0 0 0 0 Koji Kotaka Japan 0 0 0 0 John D. Kramer 0 0 0 0 Peter S. Kraus 15 0 15 0 Srihari Kumar India 0 0 0 0 Eiichiro Kuwana Japan 0 0 0 0 Tak Sing Kenneth Kwok Hong Kong 0 0 0 0 Joon Kwun South Korea 0 0 0 0 Peter Labbat 0 0 0 0 Brian J. Lahey 0 0 0 0 Peggy A. Lamb 0 0 0 0 Simon M. Lamb UK 0 0 0 0 Joseph A. LaNasa III 0 0 0 0 Eric S. Lane 0 0 0 0 Thomas K. Lane 0 0 0 0 Rudolf N. Lang Germany 0 0 0 0 Jonathan A. Langer 0 0 0 0 Michiel P. Lap The Netherlands 0 0 0 0 Gary R. Lapidus 0 0 0 0 Bruce M. Larson 0 0 0 0 Anthony D. Lauto 0 0 0 0 John J. Lauto 0 0 0 0 Matthew Lavicka 0 0 0 0 Peter T. Lawler 0 0 0 0 David N. Lawrence 0 0 0 0 Hugh J. Lawson 0 0 0 0 Peter J. Layton 0 0 0 0 Susan R. Leadem 0 0 0 0 Andrew D. Learoyd UK 0 0 0 0 Brian J. Lee 0 0 0 0 Cham Chung Ken Lee Hong Kong 0 0 0 0 Chan-Keun Lee South Korea 0 0 0 0 George C. Lee 0 0 0 0 Gregory D. Lee Australia 0 0 0 0 Ronald Lee 0 0 0 0 Kenneth H. M. Leet 0 0 0 0 Richard O. Leggett 0 0 0 0 Tim Leissner Brazil 0 0 0 0 Todd W. Leland 0 0 0 0 Paulo C. Leme 0 0 0 0 Gregg R. Lemkau 0 0 0 0 Remco O. Lenterman The Netherlands 0 0 0 0 Deborah R. Leone 0 0 0 0 Hughes B. Lepic France 0 0 0 0 Johan H. Leven Sweden 0 0 0 0 Ronald S. Levin 0 0 0 0 Allan S. Levine 0 0 0 0 Brian T. Levine 0 0 0 0
14
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Jack Levy 0 0 0 0 Richard J. Levy UK 0 0 0 0 Tobin V. Levy 0 0 0 0 P. Jeremy Lewis 0 0 0 0 Mark E. Leydecker 0 0 0 0 Matthew G. L'Heureux 0 0 0 0 George C. Liberopoulos Canada/USA 0 0 0 0 Gwen R. Libstag 0 0 0 0 Stephen C. Lichtenauer 0 0 0 0 Roger A. Liddell UK 0 0 0 0 Richard J. Lieb 0 0 0 0 Lisette M. Lieberman 775 0 775 0 Mitchell J. Lieberman 0 0 0 0 Richard C. Lightburn 0 0 0 0 Terence Tayseop Lim South Korea 0 0 0 0 Ryan D. Limaye 0 0 0 0 Josephine Linden UK 0 0 0 0 Lawrence H. Linden 0 0 0 0 Anthony W. Ling UK 0 0 0 0 Roger E. Linnemann, Jr. 0 0 0 0 Bonnie S. Litt 0 0 0 0 Robert Litterman 0 0 0 0 Julia Liu 0 0 0 0 Jill E. Lohrfink 0 0 0 0 Douglas F. Londal 0 0 0 0 Joseph Longo 0 0 0 0 Francisco Lopez-Balboa 0 0 0 0 Victor M. Lopez-Balboa 0 0 0 0 Antigone Loudiadis UK 0 0 0 0 Kevin L. Lundeen 0 0 0 0 Mark A. Lynch UK 0 0 0 0 Michael R. Lynch 0 0 0 0 Thomas R. Lynch 0 0 0 0 Peter J. Lyon 0 0 0 0 Peter B. MacDonald UK 0 0 0 0 Mark G. Machin UK 0 0 0 0 Paula B. Madoff 0 0 0 0 Shogo Maeda Japan 0 0 0 0 Christopher J. Magarro 0 0 0 0 John A. Mahoney 0 0 0 0 Sean O. Mahoney 0 0 0 0 Russell E. Makowsky 0 0 0 0 Keith A. Malas 0 0 0 0 Aadarsh K. Malde UK 0 0 0 0 Puneet Malhi UK 0 0 0 0 John V. Mallory 0 0 0 0 Kathleen M. Maloney 0 0 0 0 Jean E. Manas Greece 0 0 0 0 Charles G. R. Manby UK 0 0 0 0 Robert S. Mancini 0 0 0 0
15
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Barry A. Mannis 0 0 0 0 Simon I. Mansfield 0 0 0 0 Elizabeth C. Marcellino 0 0 0 0 Joseph C. Marconi 0 0 0 0 Robert J. Markwick UK 0 0 0 0 Nicholas I. Marovich 0 0 0 0 Alexander M. Marshall UK 0 0 0 0 David J. Marshall 0 0 0 0 Allan S. Marson UK 0 0 0 0 Paul A. Marson UK 0 0 0 0 Eff W. Martin 0 0 0 0 Alison J. Mass 0 0 0 0 Robert A. Mass 0 0 0 0 John J. Masterson 0 0 0 0 David J. Mastrocola 0 0 0 0 Blake W. Mather 0 0 0 0 Kathy M. Matsui 0 0 0 0 Naomi Matsuoka Japan 0 0 0 0 Thomas H. Mattox 0 0 0 0 George N. Mattson 0 0 0 0 Jason E. Maynard 0 0 0 0 Thomas J. McAdam 108 0 108 0 Richard F. McArdle 0 0 0 0 John J. McCabe 0 0 0 0 Theresa E. McCabe 0 0 0 0 James P. McCarthy 0 0 0 0 Joseph M. McConnell 0 0 0 0 Ian R. McCormick UK 0 0 0 0 Lynn M. McCormick 0 0 0 0 Gordon R. McCulloch UK 0 0 0 0 Dermot W. McDonogh Ireland 0 0 0 0 Mark E. McGoldrick 0 0 0 0 Joseph P. McGrath, Jr. 0 0 0 0 Stephen J. McGuinness 0 0 0 0 John C. McIntire 0 0 0 0 Matthew B. McLennan Australia 0 0 0 0 John W. McMahon 0 0 0 0 Geraldine F. McManus 0 0 0 0 Gerald C. McNamara, Jr. 0 0 0 0 James A. McNamara 0 215(12) 0 215(12) Richard P. McNeil Jamaica 0 0 0 0 Audrey A. McNiff 0 0 0 0 Stuart G. McPherson UK 0 0 0 0 Robert A. McTamaney 0 0 0 0 Lance P. Meaney 0 0 0 0 Sharon I. Meers 0 0 0 0 David M. Meerschwam The Netherlands 0 0 0 0 Sanjeev K. Mehra India 0 0 0 0
- ----------------------- (12) Shared with family members. 16
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Stephen J. Mellas 0 0 0 0 Andrew J. Melnick 0 0 0 0 Bruce H. Mendelsohn 100 400(13) 100 400(13) Michael A. Mendelson 0 0 0 0 Bernard A. Mensah UK 0 0 0 0 Garry E. Menzel UK 0 0 0 0 Andrew L. Metcalfe UK 0 0 0 0 Julian R. Metherell UK 0 0 0 0 Olivier F. Meyohas France 0 0 0 0 Michael R. Miele 0 0 0 0 Therese L. Miller 0 0 0 0 Michael J. Millette 0 0 0 0 James E. Milligan 0 0 0 0 Milton R. Millman 0 0 0 0 Luciana D. Miranda Brazil 0 0 0 0 Edward S. Misrahi Italy 0 0 0 0 Kristi L. Mitchem 0 0 0 0 Gregory C. Mitsch 0 0 0 0 Masatoki J. Mitsumata Japan 0 0 0 0 Wataru Mizoguchi Japan 0 0 0 0 Masanori Mochida Japan 0 0 0 0 Timothy H. Moe 0 0 0 0 Douglas D. Moffitt 0 0 0 0 Philip J. Moffitt Australia 0 0 0 0 Scott E. Molin 0 0 0 0 Thomas K. Montag 0 0 0 0 William C. Montgomery 0 0 0 0 Wayne L. Moore 0 0 0 0 J. Ronald Morgan, III 0 0 0 0 Yukihiro Moroe Japan 0 0 0 0 James P. Morris 0 0 0 0 Simon P. Morris UK 0 0 0 0 Thomas C. Morrow 0 0 0 0 Jeffrey M. Moslow 0 0 0 0 Sharmin Mossavar-Rahmani UK 0 0 0 0 Gregory T. Mount 0 0 0 0 Ian Mukherjee UK 0 0 0 0 Donald R. Mullen 0 0 0 0 Eric D. Mullins 0 0 0 0 Donald J. Mulvihill 0 0 0 0 Patrick E. Mulvihill Ireland 0 0 0 0 Alvise J. Munari UK 0 0 0 0 Rie Murayama Japan 0 0 0 0 Richard A. Murley UK 0 0 0 0 Arjun N. Murti 0 0 0 0 Marc O. Nachmann Germany 0 0 0 0 Kota Nakako 0 0 0 0
- ----------------------- (13) Shared with family members. 17
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Dhruv Narain India 0 0 0 0 Kevin D. Naughton 0 0 0 0 Mark J. Naylor UK 0 0 0 0 Jeffrey P. Nedelman 0 0 0 0 Leslie S. Nelson 0 0 0 0 Claire M. Ngo 0 0 0 0 Duncan L. Niederauer 0 0 0 0 Theodore E. Niedermayer USA/France 0 0 0 0 Erik F. Nielsen Denmark 0 0 0 0 Hideya Niimi Japan 0 0 0 0 Susan M. Noble UK 0 0 0 0 Markus J. Noe-Nordberg Austria 0 0 0 0 Suok J. Noh 0 0 0 0 David J. Nolan Australia 0 0 0 0 Suzanne M. Nora Johnson 0 0 0 0 Christopher K. Norton 0 0 0 0 Craig J. Nossel USA/South Africa 0 0 0 0 Anthony J. Noto 0 0 0 0 Jay S. Nydick 0 0 0 0 Eric M. Oberg 0 0 0 0 Gavin G. O'Connor 0 0 0 0 Fergal J. O'Driscoll Ireland 0 0 0 0 L. Peter O'Hagan Canada 0 0 0 0 Terence J. O'Neill UK 0 0 0 0 Timothy J. O'Neill 0 0 0 0 Richard T. Ong Malaysia 0 0 0 0 Taneki Ono Japan 0 0 0 0 Donald C. Opatrny, Jr. 0 0 0 0 Peter C. Oppenheimer UK 0 0 0 0 Daniel P. Opperman 0 0 0 0 Daniel B. O'Rourke 0 0 0 0 Roderick S. Orr UK 0 0 0 0 Calum M. Osborne UK 0 0 0 0 Joel D. Ospa 0 0 0 0 Nigel M. O'Sullivan UK 0 0 0 0 James B. Otness 0 0 0 0 Paula O'Toole 0 0 0 0 Terence M. O'Toole 0 0 0 0 Todd G. Owens 0 0 0 0 Fumiko Ozawa Japan 0 0 0 0 Robert J. Pace 0 0 0 0 Robert W. Pack UK 0 0 0 0 Helen Paleno 0 0 0 0 Gregory K. Palm 0 0 0 0 Bryant F. Pantano 0 0 0 0 Massimo Pappone Italy 0 0 0 0 James R. Paradise UK 0 0 0 0 Lisa L. Parisi 0 0 0 0 Simon Y. Park 0 0 0 0 Geoffrey M. Parker 0 0 0 0
18
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Archie W. Parnell 200 200(14) 200 200(14) Ketan J. Patel UK 0 0 0 0 Sheila H. Patel 0 0 0 0 Douglas S. Patterson 0 0 0 0 Henry M. Paulson, Jr. 0 0 0 0 Arthur J. Peponis 288 0 288 0 David E. Perlin 0 0 0 0 John M. Perlowski 0 0 0 0 Watanan Petersik Thailand 0 0 0 0 David B. Philip 0 0 0 0 Todd J. Phillips 0 0 0 0 Stephen R. Pierce 0 0 0 0 Philip J. Pifer 0 0 0 0 Steven M. Pinkos 0 0 0 0 Carol V. Pledger UK 0 0 0 0 Andrea Ponti Italy/USA 0 0 0 0 Ellen R. Porges 0 0 0 0 Michael J. Poulter UK 0 0 0 0 John J. Powers 0 0 0 0 Richard H. Powers 0 0 0 0 Gilberto Pozzi Italy 0 0 0 0 Alberto Pravettoni Italy 0 0 0 0 Anthony J. Principato 56 0 56 0 Steven D. Pruett 0 0 0 0 Andrew F. Pyne 0 0 0 0 Kevin A. Quinn 0 0 0 0 William M. Quinn 0 0 0 0 B. Andrew Rabin 0 0 0 0 Jean Raby Canada 0 0 0 0 John J. Rafter Ireland 0 0 0 0 Jonathan C. Raleigh 0 0 0 0 Dioscoro-Roy I. Ramos Philippines 0 0 0 0 Charlotte P. Ransom UK 0 0 0 0 Krishna S. Rao India 0 0 0 0 Philip A. Raper UK 0 0 0 0 Alan M. Rapfogel 0 0 0 0 Sandy C. Rattray UK 0 0 0 0 Joseph Ravitch 0 0 0 0 Sara E. Recktenwald 0 0 0 0 Nicholas T. Reid UK 0 0 0 0 David Reilly UK 0 0 0 0 Gene Reilly 0 0 0 0 Filip A. Rensky 0 0 0 0 Jeffrey A. Resnick 0 0 0 0 Richard J. Revell UK 0 0 0 0 Peter Richards UK 0 0 0 0 Jean-Manuel Richier France 0 0 0 0
- ----------------------- (14) Shared with family members. 19
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES - ------------------------------ ---------------- --------- --------- ----------- ----------- Michael J. Richman 0 0 0 0 Thomas S. Riggs III 0 0 0 0 Kirk L. Rimer 0 0 0 0 Kimberly E. Ritrievi 0 0 0 0 Louisa G. Ritter 0 0 0 0 Paul M. Roberts UK 0 0 0 0 Richard T. Roberts 9 0 9 0 William M. Roberts 0 0 0 0 Simon M. Robertson UK 0 0 0 0 Juliet A. Robinson UK 0 0 0 0 Nigel C. B. Robinson UK 0 0 0 0 Normann G. Roesch Germany 0 0 0 0 Marina L. Roesler USA/Brazil 0 0 0 0 James H. Rogan 0 0 0 0 John F. W. Rogers 0 0 0 0 Emmanuel Roman France 0 0 0 0 Eileen P. Rominger 0 0 0 0 Andrew A. Root Canada 0 0 0 0 Pamela P. Root 0 0 0 0 Clifton P. Rose New Zealand/USA 0 0 0 0 Ralph F. Rosenberg 0 0 0 0 David J. Rosenblum 0 0 0 0 Jacob D. Rosengarten 0 0 0 0 Richard J. Rosenstein 0 0 0 0 Ivan Ross 0 0 0 0 Lisa A. Rotenberg 0 0 0 0 Marc A. Rothenberg 0 0 0 0 Stuart M. Rothenberg 0 0 0 0 Michael S. Rotter 0 0 0 0 Thomas A. Roupe 0 0 0 0 Paul M. Russo 0 0 0 0 John P. Rustum Ireland/USA 25 0 25 0 Richard M. Ruzika 0 0 0 0 David C. Ryan 0 0 0 0 David M. Ryan Australia 0 0 0 0 Michael D. Ryan 0 0 0 0 Pamela S. Ryan 0 1,000 0 1,000 Katsunori Sago Japan 0 0 0 0 Pablo J. Salame Ecuador 0 0 0 0 Roy J. Salameh 0 0 0 0 J. Michael Sanders 0 0 0 0 Allen Sangines-Krause Mexico 212 0 212 0 Neil I. Sarnak 0 0 0 0 Atsuko Sato Japan 0 0 0 0 Muneer A. Satter 0 0 0 0 Marc P. Savini 0 0 0 0 James E. Sawtell UK 0 0 0 0 Josephine Scesney 0 0 0 0 Paul S. Schapira Italy 0 0 0 0 P. Sheridan Schechner 1,000 0 1,000 0
20
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES -------------------------- ---------------- --------- --------- ----------- ----------- Marcus Schenck Germany 0 0 0 0 Susan J. Scher 0 0 0 0 Gary B. Schermerhorn 0 0 0 0 Stephen M. Scherr 0 0 0 0 Clare R. Scherrer 0 0 0 0 Howard B. Schiller 0 0 0 0 Erich P. Schlaikjer 0 0 0 0 Daniel Schmitz Germany 0 0 0 0 Vivian C. Schneck-Last 0 0 0 0 Jeffrey W. Schroeder 0 0 0 0 Matthew L. Schroeder 0 0 0 0 Eric S. Schwartz 0 0 0 0 Harvey M. Schwartz 0 0 0 0 Thomas M. Schwartz 0 1,900(15) 0 1,900(15) Peter Scialla 0 0 0 0 Steven M. Scopellite 0 0 0 0 David J. Scudellari 0 0 0 0 John A. Sebastian 0 0 0 0 Peter A. Seccia 0 0 0 0 Peter A. Seibold 0 0 0 0 Karen D. Seitz 0 0 0 0 Peter D. Selman UK 0 0 0 0 Anik Sen UK 0 0 0 0 Randolph Sesson, Jr. 0 0 0 0 Lisa M. Shalett 0 0 0 0 Richard S. Sharp UK 0 0 0 0 John P. Shaughnessy 0 0 0 0 Daniel M. Shefter 0 0 0 0 David G. Shell 0 0 0 0 Heather K. Shemilt Canada 0 0 0 0 Richard G. Sherlund 0 0 0 0 Michael S. Sherwood UK 0 0 0 0 Masaru Shibata Japan 0 0 0 0 David A. Shiffman 0 0 0 0 Dong Kee Shin South Korea 0 0 0 0 Kunihiko Shiohara Japan 0 0 0 0 Abraham Shua 0 0 0 0 Susan E. Sidd 0 0 0 0 Michael H. Siegel 0 0 0 0 Ralph J. Silva 0 0 0 0 Harry Silver 0 0 0 0 Howard A. Silverstein 0 0 0 0 Gavin Simms UK 0 0 0 0 Victor R. Simone, Jr. 0 0 0 0 David T. Simons 0 0 0 0 Christine A. Simpson 0 0 0 0 David A. Simpson UK 0 0 0 0 Dinakar Singh 0 0 0 0
- ------------------------ (15) Shared with family members. 21
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES -------------------------- ---------------- --------- --------- ----------- ----------- Ravi M. Singh 0 0 0 0 Ravi Sinha India/USA 0 0 0 0 Edward M. Siskind 0 0 0 0 Christian J. Siva-Jothy UK 0 0 0 0 Mark F. Slaughter 0 0 0 0 Guy C. Slimmon UK 0 0 0 0 Jeffrey S. Sloan 0 0 0 0 Linda J. Slotnick 0 0 0 0 Cody J. Smith 0 1,000(16) 0 1,000(16) Derek S. Smith 0 0 0 0 Michael M. Smith 0 0 0 0 Sarah E. Smith UK 0 0 0 0 Trevor A. Smith UK 0 0 0 0 John E. Smollen 0 0 0 0 Jonathan S. Sobel 0 0 0 0 David M. Solomon 0 0 0 0 Judah C. Sommer 0 0 0 0 Chong Hon Andrew Song 0 0 0 0 Theodore T. Sotir 0 0 0 0 Sergio E. Sotolongo 0 0 0 0 Vickrie C. South 0 0 0 0 Daniel L. Sparks 0 0 0 0 Nicholas J. Spencer UK 0 0 0 0 Claudia Spiess Switzerland 0 0 0 0 Marc A. Spilker 0 0 0 0 Howard Q. Spooner UK 0 0 0 0 Joseph F. Squeri 0 0 0 0 Alec P. Stais 0 0 0 0 Christoph W. Stanger Austria 0 0 0 0 Keith G. Starkey UK 0 0 0 0 Esta E. Stecher 0 0 0 0 Robert K. Steel 0 0 0 0 Laurence Stein South Africa 0 0 0 0 Joseph P. Stevens 0 0 0 0 Chase O. Stevenson 0 0 0 0 Richard J. Stingi 0 0 0 0 Raymond S. Stolz 0 0 0 0 Timothy T. Storey Canada 0 0 0 0 George C. Strachan 0 0 0 0 Patrick M. Street UK 0 0 0 0 Raymond B. Strong, III 0 0 0 0 Steven H. Strongin 0 0 0 0 Nobumichi Sugiyama Japan 0 0 0 0 Christopher P. Sullivan USA/Ireland 0 0 0 0 Patrick Sullivan 0 0 0 0 Johannes R. Sulzberger Austria 0 0 0 0 Hsueh J. Sung Taiwan 0 0 0 0
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ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES -------------------------- ---------------- --------- --------- ----------- ----------- Howard B. Surloff 0 0 0 0 Richard J. Sussman 0 0 0 0 Peter D. Sutherland S.C. Ireland 0 0 0 0 Gary J. Sveva 0 0 0 0 Eric S. Swanson 0 0 0 0 Gene T. Sykes 0 0 0 0 Morgan C. Sze 0 0 0 0 Shahriar Tadjbakhsh 0 0 0 0 Kunio Tahara Japan 0 0 0 0 Thomas P. Takacs 972 0 972 0 Ronald K. Tanemura UK/USA 0 0 0 0 Kui F. Tang China (PRC) 0 0 0 0 Caroline H. Taylor UK 0 0 0 0 Greg W. Tebbe 0 0 0 0 Roland W. Tegeder Germany 0 0 0 0 Thomas D. Teles 0 0 0 0 David H. Tenney 0 0 0 0 Mark R. Tercek 0 0 0 0 John L. Thornton 0 0 0 0 Stephen M. Thurer 0 0 0 0 Nicolas F. Tiffou France 0 0 0 0 Elena B. Titova Russian Federation 0 0 0 0 Daisuke Toki Japan 0 0 0 0 Peter K. Tomozawa 0 0 0 0 Massimo Tononi Italy 0 0 0 0 Brian J. Toolan 0 0 0 0 Serena Torielli Italy 0 0 0 0 Frederick Towfigh 0 0 0 0 Mark J. Tracey UK 0 0 0 0 Stephen S. Trevor 0 0 0 0 Byron D. Trott 0 0 0 0 Michael A. Troy 0 0 0 0 Daniel Truell UK 0 0 0 0 Donald J. Truesdale 0 0 0 0 Irene Y. Tse Hong Kong 0 0 0 0 Robert B. Tudor III 0 0 0 0 Thomas E. Tuft 0 0 0 0 John Tumilty UK 0 0 0 0 Barry S. Turkanis 0 0 0 0 Christopher H. Turner 0 0 0 0 Gareth N. Turner Canada 0 0 0 0 Greg A. Tusar 0 0 0 0 Eiji Ueda Japan 0 0 0 0 Scott B. Ullem 0 0 0 0 Kaysie P. Uniacke 0 0 0 0 Can Uran 0 0 0 0 Lucas van Praag UK 0 0 0 0 Hugo H. Van Vredenburch The Netherlands 0 0 0 0 Frederick G. Van Zijl 0 0 0 0 Ashok Varadhan 0 0 0 0
23
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES -------------------------- ---------------- --------- --------- ----------- ----------- Corrado P. Varoli Canada 0 0 0 0 John J. Vaske 0 0 0 0 Philip J. Venables UK 0 0 0 0 Robin A. Vince UK 0 0 0 0 David A. Viniar 0 0 0 0 Andrea A. Vittorelli Italy 0 0 0 0 Alejandro Vollbrechthausen Mexico 0 0 0 0 Casper W. Von Koskull Finland 0 0 0 0 David H. Voon 0 0 0 0 Robert T. Wagner 0 0 0 0 John E. Waldron 0 0 0 0 Christopher J. Wales UK 0 0 0 0 George H. Walker IV 0 10(17) 0 10(17) Joann B. Walker 0 0 0 0 Thomas B. Walker III 0 0 0 0 Robert P. Wall 0 0 0 0 Steven A. Wallace UK 0 0 0 0 Berent A. Wallendahl Norway 0 0 0 0 David R. Walton UK 0 0 0 0 Hsueh-Ming Wang 0 0 0 0 Theodore T. Wang China (PRC) 0 0 0 0 Patrick J. Ward 0 0 0 0 Michael W. Warren UK 0 0 0 0 Peter J. Warren UK 0 0 0 0 Haruko Watanuki Japan 0 0 0 0 Jerry T. Wattenberg 0 0 0 0 Mark K. Weeks UK 0 0 0 0 David M. Weil 0 0 0 0 Theodor Weimer Germany 0 0 0 0 John S. Weinberg 0 0 0 0 Peter A. Weinberg 0 0 0 0 Gregg S. Weinstein 0 0 0 0 Scott R. Weinstein 0 0 0 0 Mark S. Weiss 0 0 0 0 Richard A. Weissmann 0 0 0 0 George W. Wellde, Jr. 0 0 0 0 Christopher S. Wendel 0 0 0 0 Martin M. Werner Mexico 0 0 0 0 Richard T. Wertz 0 0 0 0 Lance N. West 0 0 0 0 Matthew Westerman UK 0 0 0 0 Barbara A. White 0 0 0 0 Eileen M. White 0 0 0 0 Melanie J. White UK 0 0 0 0 William Wicker 0 0 0 0 A. Carver Wickman 0 0 0 0 Elisha Wiesel 0 0 0 0
- ----------------------- (17) Shared with family members. 24
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES -------------------------- ---------------- --------- --------- ----------- ----------- C. Howard Wietschner 0 0 0 0 David D. Wildermuth 0 0 0 0 Edward R. Wilkinson 83 0 83 0 Kevin L. Willens 0 0 0 0 Susan A. Willetts 0 0 0 0 Christopher G. Williams UK 0 0 0 0 Meurig R. Williams UK 0 0 0 0 Todd A. Williams 90 0 90 0 John S. Willian 0 0 0 0 Kenneth W. Willman 0 0 0 0 Keith R. Wills UK 0 0 0 0 Deborah B. Wilkens Germany/USA 0 0 0 0 Andrew F. Wilson New Zealand 0 0 0 0 Kendrick R. Wilson III 0 0 0 0 Kurt D. Winkelmann 0 0 0 0 Jon Winkelried 0 0 0 0 Michael S. Wishart 0 0 0 0 Samuel J. Wisnia France 0 0 0 0 Alexander D. Wohl 0 0 0 0 William H. Wolf, Jr. 0 0 0 0 Melinda B. Wolfe 0 0 0 0 Tracy R. Wolstencroft 0 0 0 0 Jon A. Woodruf 0 0 0 0 Neil J. Wright UK 0 0 0 0 Denise A. Wyllie UK 0 0 0 0 Zi Wang Xu Canada/China 0 0 0 0 (PRC) Richard A. Yacenda 0 0 0 0 Tetsufumi Yamakawa Japan 0 0 0 0 Anne Yang 0 0 0 0 Shinichi Yokote Japan 0 0 0 0 Jaime E. Yordan 0 0 0 0 W. Thomas York, Jr. 0 0 0 0 Wassim G. Younan Lebanon 0 0 0 0 Paul M. Young 0 0 0 0 William J. Young 0 0 0 0 Sanaz Zaimi UK 0 0 0 0 Peter J. Zangari 0 0 0 0 Paolo Zannoni Italy 0 0 0 0 Yoel Zaoui France 0 0 0 0 Jide J. Zeitlin 0 0 0 0 Gregory Zenna 0 0 0 0 Yi Kevin Zhang China (PRC) 0 0 0 0 Joan H. Zief 0 0 0 0 John W. Ziegler 0 0 0 0 James P. Ziperski 0 0 0 0
25
ITEM 7 ITEM 8 ITEM 9 ITEM 10 ITEM 6 SOLE SHARED SOLE SHARED CITIZENSHIP VOTING VOTING DISPOSITIVE DISPOSITIVE (UNITED STATES POWER OF POWER OF POWER OF POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES SHARES -------------------------- ---------------- --------- --------- ----------- ----------- Shares held by 44 private N/A 0 930,987 0 930,987 charitable foundations established by 44 Covered Persons each of whom is a co- trustee of one or more of such private charitable foundations(18)
- ---------------------- (18) Each Covered Person disclaims beneficial ownership of all such shares of Common Stock. 26
ITEM 7 ITEM 8 ITEM 9 ITEM 10 SOLE SHARED SOLE SHARED VOTING VOTING DISPOSITIVE DISPOSITIVE ITEM 6 POWER OF POWER OF POWER OF POWER OF ITEM 1 PLACE OF UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS ORGANIZATION SHARES SHARES SHARES SHARES -------------------------- ------------ --------- --------- ----------- ----------- TRUSTS Bott 2004 Settlement(19) UK 0 0 0 0 Campbell-Breeden 2004 Settlement UK 0 0 0 0 Deighton 2004 Settlement UK 0 0 0 0 Devenish 2004 Settlement UK 0 0 0 0 Dingemans 2004 Settlement UK 0 0 0 0 Drayton 2004 Settlement(20) UK 0 0 0 0 French 2004 Settlement UK 0 0 0 0 Grigg 2004 Settlement UK 0 0 0 0 Kirk 2004 Settlement UK 0 0 0 0 Kuala Trust(21) Jersey 0 0 0 0 Ling 2004 Settlement UK 0 0 0 0 Manby 2004 Settlement UK 0 0 0 0 Mark Denhert Living Trust Illinois 0 0 0 0 Markwick 2004 Settlement UK 0 0 0 0 O'Neill 2004 Trust UK 0 0 0 0 The Patrick J. Ward 2001 Trust New York 0 0 0 0 Ransom 2004 Settlement UK 0 0 0 0 Robertson 2004 Settlement UK 0 0 0 0 Sharp 2004 Settlement UK 0 0 0 0 Sherwood 2004 Settlement UK 0 0 0 0 Tracey 2004 Settlement UK 0 0 0 0 Westerman 2004 Settlement UK 0 0 0 0 PARTNERSHIPS Mijen Family Partnership(22) Illinois 0 0 0 0 CORPORATIONS Anahue Limited(23) Jersey 0 0 0 0 Chambolle Limited(24) Jersey 0 0 0 0 HJS2 Limited(25) Cayman Islands 0 0 0 0 HTW Inc.(26) Delaware 0 0 0 0 Melalula Limited(27) Jersey 0 0 0 0 RJG Holding Company(28) Cayman Islands 0 0 0 0
- --------------------- (19) Created by Charles W.A. Bott. (20) Created by Karen R. Cook. (21) Created by Sylvain M. Hefes. (22) Created by Peter Layton. (23) Created by Andrew A. Chisholm. (24) Created by Emmanuel Roman. (25) Created by Hsueh J. Sung. (26) Created by John P. Curtin, Jr. (27) Created by Peter D. Sutherland. 27
ITEM 7 ITEM 8 ITEM 9 ITEM 10 SOLE SHARED SOLE SHARED VOTING VOTING DISPOSITIVE DISPOSITIVE ITEM 6 POWER OF POWER OF POWER OF POWER OF ITEM 1 PLACE OF UNCOVERED UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS ORGANIZATION SHARES SHARES SHARES SHARES -------------------------- ------------ --------- --------- ----------- ----------- Robinelli Limited(29) Jersey 0 0 0 0 Vyrona Holdings Limited(30) Jersey 0 0 0 0 Zurrah Limited(31) Jersey 0 0 0 0
- ----------------------- (28) Created by Richard J. Gnodde. (29) Created by Claudio Costamagna. (30) Created by Sylvain M. Hefes. (31) Created by Yoel Zaoui. 28 This Amendment No. 53 to a Statement on Schedule 13D amends and restates in its entirety such Schedule 13D (as so amended and restated, this "Schedule"). This Amendment No. 53 is being filed primarily because the Covered Persons have approved amendments to the Shareholders' Agreement (as defined in Item 2 below) which will become effective as of June 22, 2004, as described further in Item 6 below. ITEM 1. SECURITY AND ISSUER This Schedule relates to the Common Stock, par value $.01 per share (the "Common Stock"), of The Goldman Sachs Group, Inc. ("GS Inc."), a Delaware corporation. The address of the principal executive offices of GS Inc. is 85 Broad Street, New York, New York 10004. ITEM 2. IDENTITY AND BACKGROUND (a), (b), (c), (f) The cover page to this Schedule and Appendix A hereto contain the names of the persons ("Covered Persons") who beneficially own Common Stock subject to a Shareholders' Agreement ("Covered Shares"), dated as of May 7, 1999, to which the Covered Persons are party (as amended from time to time, the "Shareholders' Agreement"). This filing is being made on behalf of all of the Covered Persons, and their agreement that this filing may be so made is contained in the Shareholders' Agreement. Appendix A hereto also provides the citizenship or place of organization of each Covered Person. Each Covered Person who is an individual (an "Individual Covered Person") is a senior professional employed by GS Inc. or one of its affiliates. GS Inc. is a global investment banking and securities firm. Each Covered Person who is not an individual is a trust, limited partnership or corporation created by or for an Individual Covered Person for estate planning purposes. Each Covered Person listed in Appendix A under the caption "Partnerships" is a limited partnership of which an Individual Covered Person is general partner. Each Covered Person listed in Appendix A under the caption "Corporations" (a "Corporate Covered Person") is controlled by an Individual Covered Person (the "Controlling Covered Person"). The name, citizenship, business address and present principal occupation or employment of each of the directors and executive officers of each Corporate Covered Person (other than the Controlling Covered Person) are set forth in Annex A hereto. The business address of each Covered Person for purposes of this Schedule is: (i) in the case of entities organized in Jersey or under the laws of the United Kingdom, 26 New Street, St. Helier, Jersey, JE2 3RA; (ii) in the case of entities organized in the Cayman Islands, P.O. Box 309, Ugland House, South Church Street, George Town, Grand Cayman, Cayman Islands; and (iii) in the case of all other Covered Persons, 85 Broad Street, New York, New York 10004. (d), (e) Except as described in Annex A or Annex B, during the last five years no Covered Person or, to the best knowledge of the Covered Persons, any executive officer or director of a Covered Person, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in such Covered Person being subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION The Covered Shares have been and will be acquired by the Covered Persons in the following manner: (i) the former profit participating limited partners active in the business of The Goldman Sachs Group, L.P. ("Group L.P.") (each such former partner, a "PMD" and, collectively, the "PMDs") acquired certain Covered Shares in exchange for their interests in Group L.P. and certain of its affiliates and investee corporations; (ii) the former owners (the "Hull Covered Persons") of Hull and Associates, L.L.C. ("Hull"), the former members (the "SLK Covered Persons") of SLK LLC, the former members (the "Jacobson Covered Persons") of Benjamin Jacobson & Sons, LLC ("Jacobson"), the former members (the "Walter Frank Covered Persons") of Walter N. Frank & Co., LLC ("Walter Frank") and John Breyo (together with the Hull Covered Persons, the SLK Covered Persons, the Jacobson Covered Persons and Walter Frank Covered Persons, the "Acquisition Covered Persons"), a former partner of The Ayco Company, L.P. ("Ayco"), acquired certain Covered Shares in exchange for their interests in Hull, SLK LLC, Jacobson, Walter Frank or Ayco, as applicable; (iii) certain Individual Covered Persons have acquired and will acquire beneficial ownership of certain other Covered Shares in connection with GS Inc.'s initial public offering and/or pursuant to GS Inc.'s employee compensation, benefit or similar plans; and (iv) certain Covered Persons (the 29 "Estate Planning Covered Persons") have acquired and will acquire beneficial ownership of their Covered Shares as contributions or gifts made by Individual Covered Persons. Covered Persons may from time to time acquire Common Stock not subject to the Shareholders' Agreement ("Uncovered Shares") for investment purposes. Such Common Stock may be acquired with personal funds of or funds borrowed by such Covered Person. ITEM 4. PURPOSE OF TRANSACTIONS The Individual Covered Persons, other than the Acquisition Covered Persons, acquired certain Covered Shares in connection with the succession of GS Inc. to the business of Group L.P. and GS Inc.'s initial public offering and through certain employee compensation, benefit or similar plans of GS Inc. The Acquisition Covered Persons acquired certain Covered Shares in connection with the acquisition by GS Inc. of Hull, Jacobson, Walter Frank or Ayco or the combination of GS Inc. with SLK LLC, as applicable, and through certain employee compensation, benefit or similar plans of GS Inc. The Estate Planning Covered Persons acquired the Covered Shares as contributions or gifts made for estate planning purposes by Individual Covered Persons. As a condition to the contribution or gift of the Covered Shares, the Shareholders' Committee required that each Estate Planning Covered Person agree to become a party to the Shareholders' Agreement. The board of directors of GS Inc. and, in the case of the PMDs, the Shareholders' Committee have approved sales by the PMDs and certain Estate Planning Covered Persons and Acquisition Covered Persons of a portion of their shares of Common Stock through two programs (the "Channel A Sales Program" and the "Channel B Sales Program"). Sales under the Channel A and Channel B Sales Programs previously occurred from March 24, 2004 through April 23, 2004 with an aggregate of 2,781,551 Covered Shares having been sold. The Channel A and Channel B Sales Programs may continue in subsequent fiscal quarters, but can be suspended, modified or terminated at any time. Covered Persons may from time to time acquire Uncovered Shares for investment purposes. Except as described herein and except for the acquisition by Covered Persons of Common Stock pursuant to employee compensation, benefit or similar plans of GS Inc. in the future or as described above, none of the Covered Persons has any plans or proposals which relate to or would result in their acquisition of additional Common Stock or any of the other events described in Item 4(a) through 4(j). Each Covered Person is expected to evaluate on an ongoing basis GS Inc.'s financial condition and prospects and his or her interests in and with respect to GS Inc. Accordingly, each Covered Person may change his or her plans and intentions at any time and from time to time. In particular, each Covered Person may at any time and from time to time acquire or dispose of shares of Common Stock. See "Approved Amendments to the Shareholders' Agreement" for a discussion of amendments to the Shareholders' Agreement that will take effect as of June 22, 2004, and that will at that time result in a larger number of shares being available for sale by Covered Persons. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Rows (11) and (13) of the cover page to this Schedule, Appendix A and Annex A are hereby incorporated by reference. Each Covered Person hereby disclaims beneficial ownership of any shares of Common Stock held by any other Covered Person. Except as described in Annex D, none of the shares of Common Stock reported in rows (11) and (13) of the cover page to this Schedule and Appendix A are shares as to which there is a right to acquire exercisable within 60 days. (b) Rows (7) through (10) of the cover page to this Schedule, Appendix A and Annex A set forth the percentage range of Covered Shares as to which there is sole power to vote or direct the vote or to dispose or direct the disposition; the number of Uncovered Shares as to which there is sole power to vote or direct the vote or to dispose or direct the disposition; and the number of shares of Common Stock as to which there is shared power to vote or direct the vote or to dispose or direct the disposition. The power to vote Covered Shares by Covered Persons is shared with each other Covered Person, as described below in response to Item 6. Each Covered Person hereby disclaims beneficial ownership of any shares of Common Stock held by any other Covered Person. (c) Except as described in Annex E or previously reported on Schedule 13D, no Covered Person has effected any transactions in Common Stock in the past 60 days. (d), (e) Not applicable. 30 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Each Covered Person listed on the cover page to this Schedule and Appendix A hereto is a party to the Shareholders' Agreement. The Shareholders' Agreement, and forms of the Counterparts to the Shareholders' Agreement executed by or on behalf of the Estate Planning Covered Persons and certain Hull Covered Persons, are filed as Exhibits to this Schedule and the following summary of the terms of the Shareholders' Agreement is qualified in its entirety by reference thereto. As described further under "Approved Amendments to the Shareholders' Agreement," the Covered Persons have approved the Approved Amendments (as defined below) to the Shareholders' Agreement, which will take effect as of June 22, 2004. The following description relates to the Shareholders' Agreement as currently in effect. The effect of the Approved Amendment is described below under "Approved Amendments to the Shareholders' Agreement." In the case of each SLK Covered Person, certain of the provisions and restrictions discussed below are set forth in an Amended and Restated Member Agreement, dated as of September 10, 2000, and amended and restated as of October 26, 2000 (an "SLK Member Agreement"), between such SLK Covered Person and GS Inc. In the case of each Jacobson Covered Person, certain of the provisions and restrictions discussed below are set forth in a Member Agreement, dated as of January 26, 2001 (the "Jacobson Member Agreement"), between such Jacobson Covered Person and GS Inc. In the case of each Walter Frank Covered Person, certain of the provisions and restrictions discussed below are set forth in a Member Agreement, dated as of May 16, 2002 (the "Walter Frank Member Agreement"), between such Walter Frank Covered Person and GS Inc. In the case of John Breyo, certain of the provisions and restrictions discussed below are set forth in a Partner Agreement, dated as of April 14, 2003 (the "Breyo Partner Agreement"), between John Breyo and GS Inc and, together with the SLK Member Agreement, the Jacobson Member Agreement and the Walter Frank Member Agreement, the "Member Agreements"). The forms of the Member Agreements are filed as Exhibits to this Schedule and the following summary is qualified in its entirety by reference thereto. References to the "board of directors" are to the board of directors of The Goldman Sachs Group, Inc. The Covered Shares include generally all Common Stock acquired or to be acquired from GS Inc. by the Covered Persons. Covered Shares include: shares of Common Stock acquired by the PMDs in exchange for their interests in Group L.P. and certain of its affiliates; shares of Common Stock acquired by the Acquisition Covered Persons in exchange for their interests in Hull, SLK LLC, Jacobson, Walter Frank or Ayco, as applicable; shares of Common Stock acquired or to be acquired through the grant of restricted stock units, stock options and interests in a defined contribution plan (except for certain Uncovered Shares as specified in Appendix A); shares of Common Stock acquired or to be acquired by Estate Planning Covered Persons from Individual Covered Persons for estate planning purposes; and, unless otherwise determined by the board of directors and the Shareholders' Committee, any shares of Common Stock acquired or to be acquired by the Covered Persons from GS Inc. through any other employee compensation, benefit or similar plan. Covered Shares do not include any shares of Common Stock purchased or to be purchased by a Covered Person in the open market or in a subsequent underwritten public offering. TRANSFER RESTRICTIONS Each Individual Covered Person (other than the Hull Covered Persons, with respect to the shares of Common Stock received in exchange for their interests in Hull) has agreed in the Shareholders' Agreement (as currently in effect), among other things, to retain beneficial ownership of Covered Shares at least equal to 25% of the cumulative number of Covered Shares beneficially owned by him or her at the time he or she became a Covered Person or acquired by him or her thereafter and with no credit for dispositions (the "General Transfer Restrictions") for so long as he or she is a Covered Person and an employee of GS Inc. (an "Employee Covered Person"). Prior to May 8, 2004, the PMDs were also subject to limitations on their ability to transfer some of the Covered Shares received in connection with the succession of GS Inc. to the business of Group L.P. Such restrictions (the "Partner Transfer Restrictions" and, together with the General Transfer Restrictions, the "Transfer Restrictions") also applied to some of the Covered Shares acquired by the Acquisition Covered Persons in exchange for their interests in Hull, SLK LLC or Jacobson, as applicable. These Partner Transfer Restrictions lapsed as to 25,325,624 Covered Shares on May 8, 2002, 54,786,126 Covered Shares on May 8, 2003 and as to the remaining 47,840,959 Covered Shares beneficially owned by the PMDs, Hull Covered Persons, SLK Covered Persons and 31 Jacobson Covered Persons on May 8, 2004. After the lapse of these Partner Transfer Restrictions, only PMDs who continue to be employees of GS Inc. or one of its affiliates are Covered Persons. The Partner Transfer Restrictions continue to apply to some of the Covered Shares acquired by the Acquisition Covered Persons in exchange for their interests in Walter Frank or Ayco. As to the Covered Shares beneficially owned by the Walter Frank Covered Persons, these Partner Transfer Restrictions lapsed as to 177,851 Covered Shares on June 26, 2003 and will lapse as to the remaining Covered Shares in equal installments on each of June 26, 2004 and June 26, 2005 and, as to the Covered Shares beneficially owned by John Breyo, will lapse in equal installments on each of July 1, 2004, July 1, 2005 and such date after December 31, 2005 (but in no event later than January 31, 2005) on which GS Inc. notifies John Breyo that such Partner Transfer Restrictions have lapsed. The Transfer Restrictions applicable to an Individual Covered Person (and his or her Estate Planning Covered Persons) terminate upon the death of the Individual Covered Person. WAIVERS The Shareholders' Committee, described below under "Information Regarding the Shareholders' Committee," has the power to waive the Transfer Restrictions to permit Covered Persons to: participate as sellers in underwritten public offerings of Common Stock and tender and exchange offers and share repurchase programs by GS Inc.; transfer Covered Shares to charities, including charitable foundations; transfer Covered Shares held in employee benefit plans; and transfer Covered Shares in specific transactions (for example, to immediate family members and trusts) or other circumstances. In the case of a third-party tender or exchange offer, the Transfer Restrictions may be waived or terminated: if the board of directors is recommending acceptance or is not making any recommendation with respect to acceptance of the tender or exchange offer, by a majority of the Voting Interests (as defined below); or if the board of directors is recommending rejection of the tender or exchange offer, by 66 2/3% of the outstanding Voting Interests. In the case of a tender or exchange offer by GS Inc., a majority of the outstanding Voting Interests may also elect to waive or terminate the Transfer Restrictions. VOTING Prior to any vote of the shareholders of GS Inc., the Shareholders' Agreement requires a separate, preliminary vote of the Voting Interests on each matter upon which a vote of the shareholders is proposed to be taken (the "Preliminary Vote"). Each Covered Share will be voted in accordance with the majority of the votes cast by the Voting Interests in the Preliminary Vote. In elections of directors, each Covered Share will be voted in favor of the election of those persons receiving the highest numbers of votes cast by the Voting Interests in the Preliminary Vote. "Voting Interests" are Covered Shares beneficially owned by all Employee Covered Persons. OTHER RESTRICTIONS The Shareholders' Agreement also prohibits the Employee Covered Persons from engaging in certain activities relating to any securities of GS Inc. with any person who is not a Covered Person or a director, officer or employee of GS Inc. ("Restricted Persons"). Among other things, an Employee Covered Person may not: participate in a proxy solicitation to or with a Restricted Person; deposit any Covered Shares in a voting trust or subject any Covered Shares to any voting agreement or arrangement that includes any Restricted Person; form, join or in any way participate in a "group" with any Restricted Person; or together with any Restricted Person, propose certain transactions with GS Inc. or seek the removal of any directors of GS Inc. or any change in the composition of the board of directors. TERM, AMENDMENT AND CONTINUATION The Shareholders' Agreement is to continue in effect until the earlier of January 1, 2050 and the time it is terminated by the vote of 66 2/3% of the outstanding Voting Interests. The Shareholders' Agreement may generally 32 be amended at any time by a majority of the outstanding Voting Interests, and has been amended as described below under "Approved Amendments to the Shareholders' Agreement." Unless otherwise terminated, in the event of any transaction in which a third party succeeds to the business of GS Inc. and in which Covered Persons hold securities of the third party, the Shareholders' Agreement will remain in full force and effect as to the securities of the third party, and the third party shall succeed to the rights and obligations of GS Inc. under the Shareholders' Agreement. INFORMATION REGARDING THE SHAREHOLDERS' COMMITTEE The Shareholders' Committee constituted pursuant to the Shareholders' Agreement (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 and who agree to serve as members of the Shareholders' Committee. If there are less than three individuals who are both Employee Covered Persons and members of the board of directors 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. Currently, Henry M. Paulson, Jr., Robert S. Kaplan and Lloyd C. Blankfein are the members of the Shareholders' Committee. APPROVED AMENDMENTS TO THE SHAREHOLDERS' AGREEMENT On June 8, 2004, the Shareholders' Committee sent a communication to Covered Persons requesting approval of amendments to the Shareholders' Agreement. As of June 14, 2004, a majority of the outstanding Voting Interests have approved the amendments (the "Approved Amendments"), which will take effect as of June 22, 2004. A copy of the Amended and Restated Shareholders' Agreement is attached as an Exhibit hereto and is incorporated by reference in its entirety into this Item 6. The principal amendments to the Shareholders' Agreement are as follows. Covered Persons. The Approved Amendment will limit Covered Persons to Managing Directors who participate in the GS Inc. Partner Compensation Plan or Restricted Partner Compensation Plan (each as defined in the Amended and Restated Shareholders' Agreement attached as an Exhibit hereto) or any other employee benefit plan specified by the Shareholders' Committee. All other Managing Directors, Advisory Directors and estate planning entities will no longer be subject to the Shareholders' Agreement, and therefore will cease to be reporting persons under this Schedule 13D. It is anticipated that this will result in the number of shares of Common Stock beneficially owned by the Covered Persons being reduced from approximately 121 million shares (or 23% of the number of shares outstanding) to approximately 71 million shares (or 14% of the number of shares outstanding). General Transfer Restrictions. Under the Approved Amendment, the General Transfer Restrictions will be calculated based only on the number of shares received as compensation (including those delivered upon exercise of options). In addition, the number of shares received as compensation will be calculated for this purpose net of (i) a number of shares determined by reference to tax rates specified by the Shareholders' Committee and (ii) the number of shares necessary to cover the option exercise price, if applicable. This will significantly increase the number of shares that may be sold by Covered Persons without contravening the General Transfer Restrictions. Special Retention Requirement. Under the Approved Amendment, certain senior officers designated by the Shareholders' Committee will be subject to a requirement to retain the beneficial ownership of 75% of their compensation shares. This new 75% retention requirement will be calculated in a manner consistent with the amended General Transfer Restrictions described above. Voting Requirements. Under the Shareholders' Agreement as currently in effect, the voting requirements described above under "Voting" apply to all Covered Shares beneficially owned by an Employee Covered Person. The Approved Amendment will apply the voting requirements to all shares over which the Covered Person has sole beneficial ownership (or that they hold in a joint account with a spouse). 33 PLEDGE AGREEMENTS In connection with GS Inc.'s acquisition of Ayco, John Breyo has pledged to GS Inc. Common Stock or other assets to secure his obligations under the Breyo Partner Agreement to indemnify GS Inc. in connection with the acquisition of Ayco and not to engage in certain competitive activities or solicit clients or employees of GS Inc. The form of each pledge agreement, as amended, is filed as an Exhibit to this Schedule and the foregoing summary of this agreement is qualified in its entirety by reference thereto. On July 31, 2000, certain Covered Persons pledged a portion of their Covered Shares to obtain approximately $400,000,000 in loan commitments to make investments from time to time in certain merchant banking funds sponsored by GS Inc. The loan commitments are for five years, may be drawn upon from time to time and generally require that any loans be collateralized by shares of Common Stock with a market value four times that of the amount borrowed. Pursuant to Rule 13d-3(d)(3) under the Securities Exchange Act of 1934, as amended, the pledgees did not acquire beneficial ownership of the pledged shares by virtue of the pledge. In addition, one or more Covered Persons have pledged in the aggregate 2,194,171 Covered Shares to third-party lending institutions as collateral for loans. A portion of these pledged shares may be sold from time to time with the consent of the third-party lending institution. REGISTRATION RIGHTS INSTRUMENT FOR CHARITABLE DONATIONS In connection with the donations of shares of Common Stock by certain Covered Persons to certain charitable organizations on December 13, 1999, December 22, 2000, December 26, 2001, January 9, 2002, December 23, 2002, January 8, 2003, December 22, 2003 and January 8, 2004, GS Inc. entered into a Registration Rights Instrument and five substantially similar Supplemental Registration Rights Instruments (the "Charitable Supplements"). The following is a description of the Registration Rights Instrument, as supplemented by the Charitable Supplements. The Registration Rights Instrument and the Charitable Supplements are filed as Exhibits to this Schedule, and the following summary of these agreements is qualified in its entirety by reference thereto. Pursuant to the Registration Rights Instrument and the Charitable Supplements, GS Inc. has agreed to register the donated shares of Common Stock for resale by charitable foundations and public charities. GS Inc. has agreed in the Registration Rights Instrument and the Charitable Supplements 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. GS Inc. also has agreed to indemnify the charitable organizations against certain liabilities, including those arising under the Securities Act. GS Inc. may amend the Registration Rights Instrument and the Charitable Supplements in any manner that it deems appropriate, without the consent of any charitable organization. However, GS Inc. may not make any amendment that would cause the shares of Common Stock to fail to be "qualified appreciated stock" within the meaning of Section 170 of the Internal Revenue Code. In addition, GS Inc. 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. REGISTRATION RIGHTS INSTRUMENT FOR EMPLOYEE MANAGING DIRECTORS In connection with the sale by certain Covered Persons (the "Employee Managing Directors") of shares of Common Stock acquired from GS Inc. pursuant to the terms of restricted stock units, GS Inc. entered into a Supplemental Registration Rights Instrument (the "EMD Supplement"), which supplements the Registration Rights Instrument referred to above. The following is a description of the Registration Rights Instrument, as supplemented by the EMD Supplement. The Registration Rights Instrument and the EMD Supplement are filed as Exhibits to this Schedule, and the following summary of these agreements is qualified in its entirety by reference thereto. Pursuant to the Registration Rights Instrument and the EMD Supplement, GS Inc. has agreed to pay all of the fees and expenses relating to the registered offering of shares of Common Stock held by the Employee Managing Directors, other than any agency fees and commissions or underwriting commissions or discounts or any 34 transfer taxes incurred by the Employee Managing Directors in connection with the sales. GS Inc. also has agreed to indemnify the Employee Managing Directors against certain liabilities, including those arising under the Securities Act. DERIVATIVE INSTRUMENTS Certain Individual Covered Persons have written American-style call options on an aggregate of 694,000 Covered Shares with strike prices ranging from $95.00 to $125.00 and maturity dates ranging from July 17, 2004 to January 22, 2005. A private foundation established by an Individual Covered Person has written an American-style call option on an aggregate of 5,000 Uncovered Shares with a strike price of $100.00 and a maturity date of July 17, 2004. 35 Material to be Filed as Exhibits
Exhibit Description - ------- -------------------------------------------------------------------- A. Shareholders' Agreement, dated as of May 7, 1999 (incorporated by reference to Exhibit A to the Schedule 13D filed May 17, 1999 (File No. 005-56295) (the "Initial Schedule 13D")). B. Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit G to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). C. Supplemental Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit H to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). D. Form of Counterpart to Shareholders' Agreement for former profit participating limited partners of The Goldman Sachs Group, L.P. (incorporated by reference to Exhibit I to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). E. Form of Counterpart to Shareholders' Agreement for former retired limited partners of The Goldman Sachs Group, L.P. who are currently managing directors of The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit J to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). F. Form of Counterpart to Shareholders' Agreement for non-individual former owners of Hull and Associates, L.L.C. (incorporated by reference to Exhibit K to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). G. Form of Counterpart to Shareholders' Agreement for non-U.S. corporations (incorporated by reference to Exhibit L to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). H. Form of Counterpart to Shareholders' Agreement for non-U.S. trusts (incorporated by reference to Exhibit M to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). I. Supplemental Registration Rights Instrument, dated as of June 19, 2000 (incorporated by reference to Exhibit R to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). J. Power of Attorney (incorporated by reference to Exhibit X to Amendment No. 14 to the Initial Schedule 13D, filed March 29, 2001 (File No. 005-56295)). K. Supplemental Registration Rights Instrument, dated as of December 21, 2000 (incorporated by reference to Exhibit AA to Amendment No. 12 to the Initial Schedule 13D, filed January 23, 2001 (File No. 005-56295)). L. Supplemental Registration Rights Instrument, dated as of December 21, 2001 (incorporated by reference to Exhibit 4.4 to the registration statement on Form S-3 (File No. 333-74006) filed by The Goldman Sachs Group, Inc.). M. Form of Power of Attorney executed by Covered Persons participating in the Channel A Sales Program (incorporated by reference to Exhibit BB to Amendment No. 27 to the Initial Schedule 13D, filed June 20, 2002 (File No. 005-56295)).
36
Exhibit Description - ------- -------------------------------------------------------------------- N. Form of Member Agreement, dated as of May 16, 2002, between GS Inc. and each Walter Frank Covered Person (incorporated by reference to Exhibit CC to Amendment No. 28 to the Initial Schedule 13D, filed July 5, 2002 (File No. 005-56295)). O. Form of Pledge Agreement, dated as of June 26, 2002, between GS Inc. and each Walter Frank Covered Person (incorporated by reference to Exhibit DD to Amendment No. 28 to the Initial Schedule 13D, filed July 5, 2002 (File No. 005-56295)). P. Supplemental Registration Rights Instrument, dated as of December 20, 2002 (incorporated by reference to Exhibit 4.4 to the registration statement on Form S-3 (File No. 333-101093) filed by The Goldman Sachs Group, Inc.). Q. Form of Written Consent Relating to Sale and Purchase of Common Stock (incorporated by reference to Exhibit FF to Amendment No. 35 to the Initial Schedule 13D, filed January 8, 2003 (File No. 005-56295)). R. Partner Agreement, dated as of April 14, 2003, between GS Inc. and John Breyo (incorporated by reference to Exhibit GG to Amendment No. 44 to the Initial Schedule 13D, filed September 19, 2003 (File No. 005-56295)). S. Pledge Agreement, dated as of July 1, 2003, between GS Inc. and John Breyo (incorporated by reference to Exhibit HH to Amendment No. 44 to the Initial Schedule 13D, filed September 19, 2003 (File No. 005-56295)). T. Supplemental Registration Rights Instrument, dated as of December 19, 2003 (incorporated by reference to Exhibit 4.4 to the registration statement on Form S-3 (File No. 333-110371) filed by The Goldman Sachs Group, Inc.). U. Amended and Restated Shareholders' Agreement.
37 ANNEX A INFORMATION REQUIRED AS TO EXECUTIVE OFFICERS AND DIRECTORS OF CORPORATE COVERED PERSONS
CONVICTIONS OR BENEFICIAL VIOLATIONS OF OWNERSHIP OF THE FEDERAL OR STATE COMMON STOCK OF PRESENT LAWS WITHIN THE THE GOLDMAN NAME CITIZENSHIP BUSINESS ADDRESS EMPLOYMENT LAST FIVE YEARS SACHS GROUP, INC. ---- ----------- ----------------- ------------------- ---------------- ------------------- Steven M. USA 85 Broad Street Managing Director, None Covered Person, so Bunson New York, NY The Goldman Sachs ownership is as set 10004 Group, Inc. forth in or incorporated into Item 5 above. Russell E. USA 85 Broad Street Managing Director, None Covered Person, so Makowsky New York, NY The Goldman Sachs ownership is as set 10004 Group, Inc. forth in or incorporated into Item 5 above. Michael H. UK 26 New Street, Partner, None None Richardson St. Helier, Jersey, Bedell Cristin JE4 3RA Anthony J. UK 26 New Street, Partner, None None Dessain St. Helier, Jersey, Bedell Cristin JE4 3RA
38 ANNEX B ITEMS 2(D) AND 2(E). INFORMATION REQUIRED AS TO CERTAIN PROCEEDINGS None. 39 ANNEX C ITEM 4. PLANNED DISPOSITION OF SECURITIES OF THE ISSUER BY COVERED PERSONS None. 40 ANNEX D ITEM 5(A). DESCRIPTION OF SHARES AS TO WHICH THERE IS A RIGHT TO ACQUIRE EXERCISABLE WITHIN 60 DAYS. An aggregate of 22,191,801 shares of Common Stock are deliverable to Covered Persons upon the exercise of stock options, all of which have vested and are exercisable. On or about June 23, 2004, an aggregate of 6,004,266 shares of Common Stock will be delivered pursuant to the terms of an equal number of restricted stock units and on or about June 23, 2004, stock options covering 7,715,758 shares of Common Stock will vest and become exercisable. The share amounts given above include the gross number of shares of Common Stock underlying these restricted stock units and options, and are included in the aggregate number of shares beneficially owned by the Covered Persons under Rule 13d-3(d)(1) because they represent a right to acquire beneficial ownership within 60 days of the date hereof. Upon delivery of the shares pursuant to the terms of restricted stock units or upon the exercise of stock options, a net amount of shares will be actually delivered to the Covered Person, with some shares withheld for tax payments, to fund the option strike price or for other reasons. The net shares delivered to the Covered Person will continue to be included in aggregate number of shares beneficially owned by the Covered Persons. The withheld shares will cease to be beneficially owned by any Covered Person, and will no longer be included in the aggregate number of shares beneficially owned by Covered Persons. 41 ANNEX E ITEM 5(C). DESCRIPTION OF ALL TRANSACTIONS IN THE COMMON STOCK EFFECTED BY THE COVERED PERSONS IN THE PAST 60 DAYS AND NOT PREVIOUSLY REPORTED ON SCHEDULE 13D The following sales of Covered Shares were made by the following Covered Persons through one or more subsidiaries of GS Inc. for cash on the New York Stock Exchange: The Covered Persons listed below participate in the Common Stock fund of The Goldman Sachs Employees' Profit Sharing Retirement Income Plan. These Covered Persons acquired interests in the Common Stock fund representing the number of shares of Common Stock set forth below. These shares are Uncovered Shares.
COVERED PERSON TRANSACTION DATE NUMBER OF SHARES PRICE PER SHARE - ------------------------------------------------------------------------------ Thomas V. Conigliaro May 14, 2004 1 $94.01 Edward A. Hazel May 14, 2004 1 $94.01 Thomas J. McAdam May 14, 2004 1 $94.01 Richard T. Roberts May 14, 2004 1 $94.01 Thomas V. Conigliaro May 28, 2004 1 $93.91 Edward A. Hazel May 28, 2004 1 $93.91 Thomas J. McAdam May 28, 2004 1 $93.91 Richard T. Roberts May 28, 2004 1 $93.91
42 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 14, 2004 By: /s/ Beverly L. O'Toole ------------------------ Name: Beverly L. O'Toole Title: Attorney-in-Fact 43 EXHIBIT INDEX
Exhibit Description - ------- ----------- A. Shareholders' Agreement, dated as of May 7, 1999 (incorporated by reference to Exhibit A to the Schedule 13D filed May 17, 1999 (File No. 005-56295) (the "Initial Schedule 13D")). B. Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit G to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). C. Supplemental Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit H to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). D. Form of Counterpart to Shareholders' Agreement for former profit participating limited partners of The Goldman Sachs Group, L.P. (incorporated by reference to Exhibit I to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). E. Form of Counterpart to Shareholders' Agreement for former retired limited partners of The Goldman Sachs Group, L.P. who are currently managing directors of The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit J to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). F. Form of Counterpart to Shareholders' Agreement for non-individual former owners of Hull and Associates, L.L.C. (incorporated by reference to Exhibit K to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). G. Form of Counterpart to Shareholders' Agreement for non-U.S. corporations (incorporated by reference to Exhibit L to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). H. Form of Counterpart to Shareholders' Agreement for non-U.S. trusts (incorporated by reference to Exhibit M to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). I. Supplemental Registration Rights Instrument, dated as of June 19, 2000 (incorporated by reference to Exhibit R to Amendment No. 5 to the Initial Schedule 13D, filed August 2, 2000 (File No. 005-56295)). J. Power of Attorney (incorporated by reference to Exhibit X to Amendment No. 14 to the Initial Schedule 13D, filed March 29, 2001 (File No. 005-56295)). K. Supplemental Registration Rights Instrument, dated as of December 21, 2000 (incorporated by reference to Exhibit AA to Amendment No. 12 to the Initial Schedule 13D, filed January 23, 2001 (File No. 005-56295)). L. Supplemental Registration Rights Instrument, dated as of December 21, 2001 (incorporated by reference to Exhibit 4.4 to the registration statement on Form S-3 (File No. 333-74006) filed by The Goldman Sachs Group, Inc.). M. Form of Power of Attorney executed by Covered Persons participating in the Channel A Sales Program (incorporated by reference to Exhibit BB to Amendment No. 27 to the Initial Schedule 13D, filed June 20, 2002 (File No. 005-56295)).
44
Exhibit Description - ------- ----------- N. Form of Member Agreement, dated as of May 16, 2002, between GS Inc. and each Walter Frank Covered Person (incorporated by reference to Exhibit CC to Amendment No. 28 to the Initial Schedule 13D, filed July 5, 2002 (File No. 005-56295)). O. Form of Pledge Agreement, dated as of June 26, 2002, between GS Inc. and each Walter Frank Covered Person (incorporated by reference to Exhibit DD to Amendment No. 28 to the Initial Schedule 13D, filed July 5, 2002 (File No. 005-56295)). P. Supplemental Registration Rights Instrument, dated as of December 20, 2002 (incorporated by reference to Exhibit 4.4 to the registration statement on Form S-3 (File No. 333-101093) filed by The Goldman Sachs Group, Inc.). Q. Form of Written Consent Relating to Sale and Purchase of Common Stock (incorporated by reference to Exhibit FF to Amendment No. 35 to the Initial Schedule 13D, filed January 8, 2003 (File No. 005-56295)). R. Partner Agreement, dated as of April 14, 2003, between GS Inc. and John Breyo (incorporated by reference to Exhibit GG to Amendment No. 44 to the Initial Schedule 13D, filed September 19, 2003 (File No. 005-56295)). S. Pledge Agreement, dated as of July 1, 2003, between GS Inc. and John Breyo (incorporated by reference to Exhibit HH to Amendment No. 44 to the Initial Schedule 13D, filed September 19, 2003 (File No. 005-56295)). T. Supplemental Registration Rights Instrument, dated as of December 19, 2003 (incorporated by reference to Exhibit 4.4 to the registration statement on Form S-3 (File No. 333-110371) filed by The Goldman Sachs Group, Inc.). U. Amended and Restated Shareholders' Agreement.
45
EX-99.U 2 y98194exv99wu.txt AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT Exhibit U AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT This Amended and Restated Shareholders' Agreement (this "Agreement"), among The Goldman Sachs Group, Inc., a Delaware corporation ("GS Inc."), and the Covered Persons (hereinafter defined) 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, GS Inc. entered into the Original Shareholders' Agreement (hereinafter defined) in connection with the initial public offering of GS Inc. to address certain relationships among the parties thereto with respect to the voting and disposition of shares of Common Stock and various other matters, and to give to the Shareholders' Committee (hereinafter defined) the power to enforce their agreements with respect thereto. WHEREAS, the Shareholders' Committee, GS Inc. and a majority of the outstanding Voting Interests (as defined in the Original Shareholders' Agreement) desire to amend certain provisions of the Original Shareholders' Agreement. NOW, THEREFORE, in consideration of the premises and of the mutual agreements, covenants and provisions herein contained, the parties hereto agree to amend and restate the Original Shareholders' Agreement in its entirety 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) This "Agreement" shall have the meaning ascribed to such term in the Recitals. (b) 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 (A) Common Stock solely by virtue of the application of Exchange Act Rule 13d-3(d) or Exchange Act Rule 13d-5, (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. (c) "Code" shall mean the United States Internal Revenue Code of 1986, as amended from time to time, and the applicable rulings and regulations thereunder. (d) "Common Stock" shall have the meaning ascribed to such term in the Recitals. (e) "Company" shall mean GS Inc., together with its Subsidiaries. (f) "Continuing Provisions" shall have the meaning ascribed to such term in Section 7.1(b). (g) "Covered Persons" shall mean the Participating Managing Directors, whose names are listed on Appendix A hereto, and all persons who may become Participating Managing Directors, whose names will be added to Appendix A hereto. (h) "Covered Shares" shall, with respect to each Covered Person, equal the sum of the number of shares of Common Stock determined by the following calculation, which calculation shall be made, and the sum shall be determined, each time, after a Covered Person's Participation Date and with respect to an award under a Goldman Sachs Compensation Plan, such Covered Person: (i) receives Common Stock underlying an award of restricted stock units, (ii) becomes vested in an award under the Defined Contribution Plan with respect to fiscal 1999 or 2000 only, or (iii) exercises a stock option. As of each such relevant event, the calculation, unless otherwise determined by the Shareholders' Committee, shall be: (A) such Covered Person's "gross" number of shares of Common Stock underlying such restricted stock units, Defined Contribution Plan awards or stock options, as applicable (i.e., the gross number is determined before any deductions, including any deductions for withholding taxes, fees, commissions or the payment of any amount in respect of exercise), 2 minus (B) the sum of: (1) with respect to the exercise of any stock option, a number of shares of Common Stock (subject to rounding) having a fair market value equal to the exercise price of such option (determined based on the closing price of the Common Stock on the trading day immediately preceding the date of exercise), but not including any amount in respect of fees, commissions, taxes or other charges, and (2) with respect to any relevant event, the product of: (a) the "gross" number of shares of Common Stock underlying the awards as described in Clause (A) above, less the number of shares of Common Stock determined in Clause (B)(1) above, if any, and (b) the Specified Tax Rate. With respect to any other type of award that may be granted under a Goldman Sachs Compensation Plan from time to time, the timing and manner of the calculation of Covered Shares in connection with such awards shall be as determined by the Shareholders' Committee. (i) "Defined Contribution Plan" shall mean The Goldman Sachs Defined Contribution Plan adopted by the Board of Directors of GS Inc., and approved by the stockholders of GS Inc., on May 7, 1999, as amended or supplemented from time to time, and any successors to such Plan. (j) "Designated Senior Officers" shall mean each Participating Managing Director who at the time in question has been appointed to a Designated Title. (k) "Designated Title" shall have the meaning ascribed to such term in Section 7.2(g) hereof. (l) "Effective Date" shall mean the close of business on June 22, 2004. (m) "Employees' Profit Sharing Plan" shall mean The Goldman Sachs Employees' Profit Sharing Retirement Income Plan, as amended or supplemented from time to time, and any successors to such Plan. (n) "Exchange Act" shall mean the United States Securities Exchange Act of 1934, as amended from time to time. 3 (o) A reference to an "Exchange Act Rule" shall mean such rule or regulation of the SEC under the Exchange Act, as in effect from time to time or as replaced by a successor rule thereto. (p) "General Transfer Restrictions" shall have the meaning ascribed to such term in Section 2.1(a) hereof. (q) "Goldman Sachs Compensation Plan" shall mean the Defined Contribution Plan, the Stock Incentive Plan or any other deferred compensation or employee benefit plan of GS Inc. adopted by the Board of Directors of GS Inc. and specified by the Shareholders' Committee as a Goldman Sachs Compensation Plan (other than the Employees' Profit Sharing Plan). (r) "GS Inc." shall have the meaning ascribed to such term in the Recitals. (s) "Original Shareholders' Agreement" shall mean the Shareholders' Agreement adopted by the Board of Directors of GS Inc. on May 7, 1999, as amended or supplemented from time to time up to but excluding the Effective Date. (t) "Participation Date" is the date on which a Covered Person became a Participating Managing Director for purposes of Section 2.1(a) hereof or was appointed to a Designated Title for purposes of Section 2.1(b) hereof. In the event a Participating Managing Director ceases to be a Participating Managing Director, or a Designated Senior Officer ceases to be a Designated Senior Officer, and then such person again becomes a Participating Managing Director or Designated Senior Officer, as applicable, such person's Participation Date shall be determined by the Shareholders' Committee (or any person authorized thereby). (u) "Participating Managing Director" shall mean a Managing Director of the Company who at the time in question participates in the Partner Compensation Plan, the Restricted Partner Compensation Plan or any other compensation or benefit plan specified by the Shareholders' Committee. (v) "Partner Compensation Plan" shall mean The Goldman Sachs Partner Compensation Plan adopted by the Board of Directors of GS Inc., and approved by the stockholders of GS Inc., on May 7, 1999, as amended or supplemented from time to time, and any successors to such Plan. (w) A "person" shall include, as applicable, any individual, estate, trust, corporation, partnership, limited liability company, unlimited liability company, foundation, association or other entity. 4 (x) "Preliminary Vote" shall have the meaning ascribed to such term in Section 4.1(a) hereof. (y) "Restricted Partner Compensation Plan" shall mean The Goldman Sachs Restricted Partner Compensation Plan adopted by the Board of Directors of GS Inc. on January 16, 2003 and approved by the stockholders of GS Inc. on April 1, 2003, as amended or supplemented from time to time, and any successors to such Plan. (z) "Restricted Person" shall mean any person who 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. (aa) "SEC" shall mean the United States Securities and Exchange Commission. (bb) "Shareholders' Committee" shall mean the body constituted to administer the terms and provisions of this Agreement pursuant to Article V hereof. (cc) "Sole Beneficial Owner" shall mean a person who is the beneficial owner of shares of Common Stock, who does not share beneficial ownership of such shares of Common Stock 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 such shares of Common Stock. The interest of a spouse or a domestic partner in a joint account, and an economic interest of the Company as pledgee, shall be disregarded for this purpose. (dd) "Special Transfer Restrictions" shall have the meaning ascribed to such term in Section 2.1(b) hereof. (ee) "Specified Tax Rate" shall mean the rate determined from time to time by the Shareholders' Committee (or any person authorized thereby), in its sole discretion, to be applicable to the calculation of Covered Shares. (ff) "Stock Incentive Plan" shall mean The Goldman Sachs Amended and Restated Stock Incentive Plan adopted by the Board of Directors of GS Inc. on January 16, 2003 and approved by the stockholders of GS Inc. on April 1, 2003, as amended or supplemented from time to time, and any successors to such Plan. (gg) "Subsidiary" shall mean any person in which GS Inc. owns, directly or indirectly, a majority of the equity economic or voting ownership interest. 5 (hh) "Transfer Restrictions" shall mean the General Transfer Restrictions and the Special Transfer Restrictions. (ii) "vote" shall include actions taken or proposed to be taken by written consent. (jj) "Voting Shares" shall have the meaning ascribed to such term in Section 4.1(a). 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 Transfer Restrictions. (a) Each Covered Person agrees that for so long as he is a Covered Person, he shall at all times be the Sole Beneficial Owner of at least that number of shares of Common Stock which equals 25% of his Covered Shares (the "General Transfer Restrictions"). (b) Each Designated Senior Officer agrees that for so long as he is a Designated Senior Officer, he shall at all times be the Sole Beneficial Owner of at least that number of shares of Common Stock which equals 75% of his Covered Shares (the "Special Transfer Restrictions"); provided, however, that the same Covered Shares may be used to satisfy both the Special Transfer Restrictions and the General Transfer Restrictions. Section 2.2 Holding of Common Stock in GS Inc. Brokerage Accounts or in Custody and in Nominee Name; Entry of Stop Transfer Orders. (a) Each Covered Person understands and agrees that all shares of Common Stock beneficially owned by him (other than shares of Common Stock held of record by a trustee in a Goldman Sachs Compensation Plan or the Employees' Profit Sharing Plan) shall, as determined by the Shareholders' Committee from time to time, be held either in a brokerage account with a Subsidiary in his name or in the custody of a custodian (and registered in the name of a nominee for such Covered Person). If shares of Common Stock are required to be held in the custody of a custodian as provided in this Section 2.2(a), each Covered Person agrees (i) to assign, endorse and register for transfer into such nominee name or deliver to such custodian any such shares of Common Stock which are not so registered or so held, as the case may be, and (ii) that the form of the custody agreement and the identity of the 6 custodian and nominee must be satisfactory in form and substance to the Shareholders' Committee and GS Inc. (b) For such time as shares of Common Stock are required to be held in the custody of a custodian in accordance with Section 2.2(a), whenever the nominee holder shall receive any dividend or other distribution upon any shares of Common Stock other than in shares of Common Stock, 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 shares of Common Stock, 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 agrees and consents to the entry of stop transfer orders against the transfer of shares of Common Stock subject to Transfer Restrictions except in compliance with this Agreement. (d) The Shareholders' Committee (or any person authorized thereby) shall develop procedures for releasing from the Transfer Restrictions all shares of Common Stock of each Covered Person who ceases to be a Covered Person. 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 shares of Common Stock to be acquired, will have) good, valid and marketable title to the shares of Common Stock subject to the General Transfer Restrictions set forth in Section 2.1(a) (or, with respect to Designated Senior Officers, subject to the Special Transfer Restrictions set forth in Section 2.1(b)), free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to this Agreement, an agreement with the Company by which such Covered Person is bound and to which the shares of Common Stock are subject or as permitted by the policies of GS Inc. in effect from time to time; (b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 4.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and 7 (c) (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 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 8 respect to the interest of such spouse in the shares of Common Stock 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. Each Covered Person severally agrees for himself that the foregoing provision of this Article III shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that period. 9 ARTICLE IV VOTING AGREEMENT Section 4.1 Preliminary Vote of Covered Persons; Voting Procedures. (a) 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 all of the shares of Common Stock of which a Covered Person is the Sole Beneficial Owner (excluding shares of Common Stock held by the trust underlying the Employees' Profit Sharing Plan) and the shares of Common Stock held by the trust underlying a Goldman Sachs Compensation Plan and allocated to a Covered Person (collectively, the "Voting Shares"). (b) Other than in elections of directors, every Voting Share shall be voted in accordance with the vote of the majority of the votes cast on the matter in question by the Voting Shares in the Preliminary Vote. (c) In elections of directors, every Voting 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 Shares in the Preliminary Vote. Section 4.2 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 Voting Shares as of the relevant record date or other date used for purposes of determining holders of Common Stock entitled to vote or take any action, 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, as follows: (i) such proxy shall be voted in connection with such matters as are the subject of a Preliminary Vote as provided in this Agreement in accordance with such Preliminary Vote; (ii) the holder of such proxy shall be authorized 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 holder of such proxy sees fit in 10 his discretion but in a manner consistent with the Preliminary Vote; and (iii) the holder of such proxy shall be authorized 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 holder of such proxy sees fit in his 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 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 Covered Person that this proxy may be exercised by the holder of such proxy with respect to all Voting Shares of such Covered Person for the period beginning on the Effective Date and ending on the earlier of (a) the date this Agreement shall have been terminated pursuant to Section 7.1(a) hereof or, (b) in the case of a Covered Person, Section 7.1(b) 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 Voting Shares held of record by any other person but beneficially owned by such Covered Person (including Voting Shares held by the trust underlying any Goldman Sachs Compensation 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 4.1 and Section 4.2(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 Covered Person that this appointment, empowerment and authorization may be exercised by the aforementioned persons with respect to all Voting Shares of such Covered Person, and held of record by another person, for the period beginning on the Effective Date and ending on (a) the earlier of the date this Agreement shall have been terminated pursuant to Section 7.1(a) hereof or, (b) in the case of a Covered Person, Section 7.1(b) hereof. 11 ARTICLE V SHAREHOLDERS' COMMITTEE Section 5.1 Membership. The Shareholders' Committee shall at all times consist of all of those individuals who are both 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 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 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 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 actions (including waivers) hereunder 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 capacities as members of the Shareholders' Committee 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 (in person or telephonically) 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 stockholders of GS Inc. and to vote or to cause such designee to vote the Voting Shares over which it has the power to vote in accordance with the results of the Preliminary Vote 12 as set forth in Section 4.1, 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 shares of Common Stock in a voting trust or subject any shares of Common Stock 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. 13 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 SEC, 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 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 incurred by him in connection with compliance 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 shares of Common Stock 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, he 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 he understands and agrees that such report shall be filed on his behalf by the Shareholders' Committee, any member thereof or any person authorized thereby. 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 him which he 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 SEC, 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 14 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 Covered Person that this appointment, empowerment and authorization may be exercised by the aforementioned persons for the period beginning on May 7, 1999 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, and only 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 "Common Stock" 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 Common Stock. 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 2.1 (and, if it so determines, any other provisions hereof) as it shall deem necessary, advisable or appropriate or desirable to carry out the intent of such provisions. If the Shareholders' Committee deems it necessary, advisable or appropriate, 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 Common Stock, and the terms "Common Stock," "Covered Shares" and "Voting Shares," and "GS Inc." and "Company," shall refer to such voting securities formerly representing or distributed in respect of shares of Common Stock of GS Inc. and such other 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 2.1 (and, if it so determines, any other provisions hereof) as it shall deem necessary, advisable or appropriate to carry out the intent of such provisions. 15 If the Shareholders' Committee deems it necessary, advisable or appropriate, 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 legal representatives, successors and assigns of the Covered Persons (and GS Inc. in the event of a transaction described in Section 6.4(b) 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. Section 6.6 Promotions to Designated Senior Officer. Each Participating Managing Director who is a party to this Agreement agrees to be bound by the Special Transfer Restrictions in place at such time as he may be promoted to Designated Senior Officer, notwithstanding that such Special Transfer Restrictions could be materially different than the Special Transfer Restrictions in place on the later of the Effective Date or such person's Participation Date. 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 Covered Shares. (b) Unless this Agreement is previously terminated pursuant to Section 7.1(a) hereof, (i) any Covered Person who ceases to be a Covered Person for any reason other than death 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 and 7.10 (the "Continuing Provisions")), and such Covered Person's name shall be removed from Appendix A to this Agreement, and (ii) any Designated Senior Officer who ceases to hold a Designated Title shall no longer be bound by the provisions of Section 2.1(b) hereof. 16 (c) Unless this Agreement is theretofore terminated pursuant to Section 7.1(a) hereof, the estate of any Covered Person who ceases to be a Covered Person by reason of death shall from and after the date of such death be bound only by the Continuing Provisions, and such Covered Person's name shall be removed from Appendix A to this Agreement. (d) Any person who is a Covered Person under the Original Shareholders' Agreement but who is not a Covered Person (as defined herein) as of the Effective Date shall no longer be bound by the provisions of this Agreement (other than the Continuing Provisions) and such person's name shall be removed from Appendix A hereto, provided that it is understood that any such person who becomes a Covered Person after the Effective Date shall be bound by the provisions of this Agreement upon his appointment as a Participating Managing Director and that his name shall be added to Appendix A hereto. 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 the holders of a majority of the outstanding Covered Shares. (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 the holders of 66 2/3% of the outstanding Covered Shares. 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 then in effect shall also require the affirmative vote of the holders of 66 2/3% of the outstanding Covered Shares. (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 the holders of a majority of the Covered Shares or (ii) by the affirmative vote of the holders of 66 2/3% of the outstanding Covered Shares. (d) In addition to any other vote or approval that may be required under this Section 7.2, (i) 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 and (ii) any amendment to the Special Transfer Restrictions that would make such Special 17 Transfer Restrictions materially more onerous to a current Designated Senior Officer will not be enforceable against that Designated Senior Officer unless that Designated Senior Officer 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. (f) Each Covered Person understands that it is intended that each Participating 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 provisions of this Agreement pursuant to the terms hereof when they cease to be Participating Managing Directors. 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, 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. (g) Each Covered Person agrees that the Shareholders' Committee, without the approval of any other person, may designate positions that may be held by senior executives of GS Inc. from time to time (each, a "Designated Title") that will subject such senior executives to the Special Transfer Restrictions pursuant to Section 2.1(b) hereof. (h) Section 2.1 may be amended with the approval of the Shareholders' Committee and GS Inc. without requiring the affirmative vote of the outstanding Covered Shares to decrease either or both of the percentages stated therein, provided, however, that in no event shall the percentage applicable to the Special Transfer Restrictions in Section 2.1(b) ever be less than the percentage applicable to the General Transfer Restrictions in Section 2.1(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 Covered Shares may waive the Transfer Restrictions and the other provisions of this Agreement without the consent of any other person as follows: 18 (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 the holders of 66 2/3% of the outstanding Covered Shares; (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 the holders of a majority of the outstanding Covered Shares; (iii) The Transfer Restrictions may be waived, in connection with any tender or exchange offer by the Company, by the affirmative vote of the holders of a majority of the outstanding Covered Shares; and (iv) In all circumstances other than those set forth in Sections 7.2 or 7.3(a)(i), (ii) and (iii), the provisions of this Agreement may be waived only by the affirmative vote of the holders of a majority of the outstanding Covered Shares; provided, however, that the holders of the outstanding Covered Shares may not waive the provisions of this Agreement in the circumstances set forth in Section 7.3(b). (b) The Shareholders' Committee may waive the Transfer Restrictions and the other provisions of this Agreement without the consent of any other person to permit: (i) Covered Persons to participate as sellers in underwritten public offerings of, and stock repurchase programs and tender or exchange offers by GS Inc. for, Common Stock; (ii) 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; (iii) transfers of Covered Shares held in employee benefit plans of the Company either generally or in particular situations; and 19 (iv) 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. (c) In connection with any waiver granted under this Agreement, the Shareholders' Committee or the holders of the percentage of Covered Shares required for the waiver, as the case may be, may impose such conditions as they determine on the granting of such waivers. (d) 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. (b) Without diminishing the finality and conclusive effect of any determination by the Shareholders' Committee of any matter under this Agreement (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 20 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) 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. 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). 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). 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 United States 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. 21 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. One New York Plaza 37th Floor New York, New York 10004 Fax: (212) 482-3966 Attention: General Counsel; If to the Shareholders' Committee, at Shareholders' Committee under the Shareholders' Agreement, c/o The Goldman Sachs Group, Inc. One New York Plaza 37th Floor New York, New York 10004 Fax: (212) 482-3966 Attention: General Counsel; and If to GS Inc., at The Goldman Sachs Group, Inc. One New York Plaza 37th Floor New York, New York 10004 Fax: (212) 482-3966 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. 22 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 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. 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. 23 IN WITNESS WHEREOF, the parties hereto have duly executed or caused to be duly executed this Agreement. THE GOLDMAN SACHS GROUP, INC. By:_________________________________________ Name: Title: Dated : June __, 2004 24
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