-----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, Lx98HNiMczvWjDiM55wtfG2Np1vjNTYAp/DTFb06rumQmgUCxHS2w9ysuNd6Fi3f bmwFMDw4y0F9PFkkLOkPaA== 0000950123-04-013298.txt : 20041110 0000950123-04-013298.hdr.sgml : 20041110 20041109161926 ACCESSION NUMBER: 0000950123-04-013298 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20041109 DATE AS OF CHANGE: 20041109 GROUP MEMBERS: EACH OF THE PERSONS IDENTIFIED ON APPENDIX A 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: 041129898 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 y68571sc13dza.txt AMENDMENT NO.57 TO SCHEDULE 13D SECURITIES EXCHANGE COMMISSION Washington, D.C. 20549 File No. 005-56295 ---------- SCHEDULE 13D/A (Rule 13d-101) Amendment No. 57 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 10 4 --------------------- (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) November 4, 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 and PF (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: 0 ------------------------------------------------------------- NUMBER OF 8. SHARED VOTING POWER (See Item 6) (Applies to each SHARES person listed on Appendix A.) BENEFICIALLY 44,630,400 Voting Shares(2) held by Covered Persons OWNED BY 3,470 Shared Ownership Shares held by Covered Persons(3) REPORTING 22,886,601 Sixty Day Shares held by Covered Persons(4) PERSON 2,872,035 Other Shares held by Covered Persons (5) WITH ------------------------------------------------------------- 9. SOLE DISPOSITIVE POWER (See Item 6) As to Voting Shares, less than 1% As to Shared Ownership Shares, Sixty Day Shares and Other Shares, 0 ------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER (See Item 6): As to Voting Shares, 0 As to Shared Ownership Shares, less than 0.01% As to Sixty Day Shares and Other Shares, less than 1%. - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 70,392,506 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13.94% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: IN as to Covered Persons; CO as to Reporting Entities(1) that are corporations; OO as to Reporting Entities that are trusts - ---------- (1) For a definition of this term, please see Item 2. (2) For a definition of this term, please see Item 6. (3) "Shared Ownership Shares" are shares of Common Stock (other than Other Shares, as defined below) of which a Covered Person shares beneficial ownership with someone other than the Covered Person's spouse. Each Covered Person disclaims beneficial ownership of Shared Ownership Shares beneficially owned by each other Covered Person. (4) "Sixty Day Shares" are shares of Common Stock deemed to be 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. Upon acquisition by the Covered Person, these shares will become Voting Shares. Each Covered Person disclaims beneficial ownership of Sixty Day Shares beneficially owned by each other Covered Person. (5) "Other Shares" include: (i) 594,809 shares of Common Stock held by 32 private charitable foundations established by 32 Covered Persons; and (ii) 2,277,226 shares of Common Stock held by certain estate planning entities established by Covered Persons. Each Covered Person disclaims beneficial ownership of Other Shares beneficially owned by each other Covered Person, and each Covered Person disclaims beneficial ownership of all shares held by any private charitable foundation. -2-
ITEM 1 ITEM 6 - -------------------------- CITIZENSHIP (UNITED NAMES OF REPORTING PERSONS STATES UNLESS - -------------------------- OTHERWISE INDICATED) -------------------- Bradley I. Abelow Peter C. Aberg Raanan A. Agus Syed H. Ahmad Pakistan Philippe J. Altuzarra France Akio Asuke Japan Armen A. Avanessians Dean C. Backer Milton R. Berlinski The Netherlands Frances R. Bermanzohn Stuart N. Bernstein Jean-Luc Biamonti Monaco Lloyd C. Blankfein Charles W.A. Bott UK Craig W. Broderick Richard J. Bronks UK John J. Bu Timothy B. Bunting UK Lawrence V. Calcano John D. Campbell Richard M. Campbell-Breeden UK Michael J. Carr Chris Casciato Andrew A. Chisholm Canada Robert J. Christie Abby Joseph Cohen Alan M. Cohen Lawrence A. Cohen Gary D. Cohn Christopher A. Cole Laura C. Conigliaro Frank T. Connor Karen R. Cook UK Edith W. Cooper Henry Cornell E. Gerald Corrigan Claudio Costamagna Italy Frank L. Coulson, Jr. Randolph L. Cowen Brahm S. Cramer Canada Neil D. Crowder Michael D. Daffey Australia John S. Daly Ireland Philip M. Darivoff Michael G. De Lathauwer Belgium Mark Dehnert Paul C. Deighton UK Juan A. Del Rivero Spain Martin R. Devenish UK Armando A. Diaz Alexander C. Dibelius Germany Simon P. Dingemans UK Suzanne O. Donohoe Mario Draghi Italy Michael B. Dubno William C. Dudley Jay S. Dweck Gordon E. Dyal Isabelle Ealet France Glenn P. Earle UK Paul S. Efron Herbert E. Ehlers Edward K. Eisler Austria Michael P. Esposito J. Michael Evans Canada Stephen C. Fitzgerald Australia Edward C. Forst Christopher G. French UK Richard A. Friedman Robert K. Frumkes Enrico S. Gaglioti Peter C. Gerhard Rajiv A. Ghatalia India Robert R. Gheewalla Scott A. Gieselman H. John Gilbertson, Jr. Richard J. Gnodde Ireland/ South Africa Jeffrey B. Goldenberg James S. Golob Andrew M. Gordon Frank J. Governali Geoffrey T. Grant William M. Grathwohl Stefan Green Australia David J. Greenwald Christopher M. Grigg UK Douglas C. Grip Celeste A. Guth David B. Heller David L. Henle Melina E. Higgins Kenneth W. Hitchner Maykin Ho Peter Hollmann Germany Terry P. Hughes Ireland
-3-
ITEM 1 ITEM 6 - -------------------------- CITIZENSHIP (UNITED NAMES OF REPORTING PERSONS STATES UNLESS - -------------------------- OTHERWISE INDICATED) -------------------- Phillip S. Hylander UK Timothy J. Ingrassia William L. Jacob III Dan H. Jester Robert C. Jones Ravindra J. Joseph UK/USA Chansoo Joung David A. Kaplan Robert S. Kaplan Scott B. Kapnick Carsten Kengeter Germany Kevin W. Kennedy Philippe Khuong-Huu France Douglas W. Kimmelman Robert C. King, Jr. Shigeki Kiritani Japan Ewan M. Kirk UK Bradford C. Koenig Mark J. Kogan Peter S. Kraus Eric S. Lane Anthony D. Lauto Gregg R. Lemkau Hughes B. Lepic France Jack Levy Matthew G. L'Heureux Gwen R. Libstag Mitchell J. Lieberman Ryan D. Limaye Josephine Linden UK Anthony W. Ling UK Robert Litterman Victor M. Lopez-Balboa Antigone Loudiadis UK Mark G. Machin UK John A. Mahoney Charles G. R. Manby UK Robert J. Markwick UK Alison J. Mass John J. Masterson David J. Mastrocola Kathy M. Matsui George N. Mattson Theresa E. McCabe Mark E. McGoldrick Stephen J. McGuinness John W. McMahon Audrey A. McNiff Robert A. McTamaney Sanjeev K. Mehra India Andrew L. Metcalfe UK Therese L. Miller Masanori Mochida Japan Thomas K. Montag William C. Montgomery Wayne L. Moore Jeffrey M. Moslow Sharmin Mossavar-Rahmani UK Gregory T. Mount Donald R. Mullen Duncan L. Niederauer Suzanne M. Nora Johnson L. Peter O'Hagan Canada Terence J. O'Neill UK Timothy J. O'Neill Richard T. Ong Malaysia Terence M. O'Toole Robert J. Pace Gregory K. Palm Henry M. Paulson, Jr. David B. Philip Stephen R. Pierce Andrea Ponti Italy/USA Richard H. Powers John J. Rafter Ireland Charlotte P. Ransom UK Joseph Ravitch John F. W. Rogers Emmanuel Roman France Ralph F. Rosenberg Ivan Ross Stuart M. Rothenberg Paul M. Russo Richard M. Ruzika Michael D. Ryan Katsunori Sago Japan Pablo J. Salame Ecuador J. Michael Sanders Muneer A. Satter Marcus Schenck Germany Gary B. Schermerhorn Stephen M. Scherr Howard B. Schiller Jeffrey W. Schroeder Eric S. Schwartz Harvey M. Schwartz
-4-
ITEM 1 ITEM 6 - -------------------------- CITIZENSHIP (UNITED NAMES OF REPORTING PERSONS STATES UNLESS - -------------------------- OTHERWISE INDICATED) -------------------- Steven M. Scopellite Lisa M. Shalett Richard S. Sharp UK Richard G. Sherlund Michael S. Sherwood UK Ravi M. Singh Ravi Sinha India/USA Edward M. Siskind Christian J. Siva-Jothy UK Michael M. Smith Sarah E. Smith UK Jonathan S. Sobel David M. Solomon Daniel L. Sparks Marc A. Spilker Esta E. Stecher Steven H. Strongin Hsueh J. Sung Taiwan Gene T. Sykes Greg W. Tebbe Mark R. Tercek Mark J. Tracey UK Stephen S. Trevor Byron D. Trott Michael A. Troy Robert B. Tudor III Eiji Ueda Japan Kaysie P. Uniacke Hugo H. Van Vredenburch The Netherlands Ashok Varadhan Corrado P. Varoli Canada John J. Vaske David A. Viniar John E. Waldron George H. Walker IV Patrick J. Ward David M. Weil John S. Weinberg Peter A. Weinberg Gregg S. Weinstein George W. Wellde, Jr. Matthew Westerman UK William Wicker C. Howard Wietschner Susan A. Willetts Todd A. Williams John S. Willian Kendrick R. Wilson III Jon Winkelried Michael S. Wishart Tracy R. Wolstencroft W. Thomas York, Jr. Paul M. Young William J. Young Paolo Zannoni Italy Yoel Zaoui France Jide J. Zeitlin
-5- REPORTING ENTITIES
ITEM 1 ITEM 6 NAME OF ESTABLISHING NAME OF ENTITY TYPE OF ENTITY PLACE OF ORGANIZATION COVERED PERSON -------------- -------------- --------------------- -------------- Anahue Limited Corporation Jersey Andrew A. Chisholm Bott 2004 Settlement Trust UK Charles W.A. Bott Campbell-Breeden 2004 Settlement Trust UK Richard M. Campbell-Breeden Chambolle Limited Corporation Jersey Emmanuel Roman Deighton 2004 Settlement Trust UK Paul C. Deighton Devenish 2004 Settlement Trust UK Martin R. Devenish Dingemans 2004 Settlement Trust UK Simon P. Dingemans Drayton 2004 Settlement Trust UK Karen R. Cook French 2004 Settlement Trust UK Christopher G. French Grigg 2004 Settlement Trust UK Christopher M. Grigg HJS2 Limited Corporation Cayman Islands Hsueh J. Sung Kirk 2004 Settlement Trust UK Ewan M. Kirk Ling 2004 Settlement Trust UK Anthony W. Ling Manby 2004 Settlement Trust UK Charles G.R. Manby Markwick 2004 Settlement Trust UK Robert J. Markwick O'Neill 2004 Trust Trust UK Terence J. O'Neill The Patrick J. Ward 2001 Trust Trust New York Patrick J. Ward Ransom 2004 Settlement Trust UK Charlotte P. Ransom RJG Holding Company Corporation Cayman Islands Richard J. Gnodde Robinelli Limited Corporation Jersey Claudio Costamagna Sharp 2004 Settlement Trust UK Richard S. Sharp Sherwood 2004 Settlement Trust UK Michael S. Sherwood Tracey 2004 Settlement Trust UK Mark J. Tracey Westerman 2004 Settlement Trust UK Matthew Westerman Zurrah Limited Corporation Jersey Yoel Zaoui
6 This Amendment No. 57 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. 57 is being filed primarily because the number of shares of Common Stock (as defined in Item 1 below) beneficially owned by Covered Persons (as defined in Item 2 below) has increased by an amount in excess of one percent of the total number of shares of Common Stock outstanding. 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 individuals ("Covered Persons") who are parties to a Shareholders' Agreement, dated as of May 7, 1999 and amended and restated as of June 22, 2004 (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 of each Covered Person. Each Covered Person is a Participating Managing Director (as defined in Item 6 below) employed by GS Inc. or one of its affiliates. GS Inc. is a global investment banking and securities firm. The business address of each Covered Person for purposes of this Schedule is 85 Broad Street, New York, New York 10004. Each entity listed on Appendix A under "Reporting Entities" (each a "Reporting Entity") is a trust or corporation created by or for a Covered Person for estate planning purposes. Each Reporting Entity is controlled by a Covered Person. The name, citizenship, business address and present principal occupation or employment of each of the directors and executive officers of each Reporting Entity that is a corporation (other than the Covered Person that established the Reporting Entity) are set forth in Annex A hereto. The business address of each Reporting Entity 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 entities organized in the United States, 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 and, to the best knowledge of the Covered Persons, no executive officer or director of a Reporting Entity, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding or a judicial or administrative body of competent jurisdiction resulting in such Covered Person or executive officer or director 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 Persons have acquired and will acquire shares of Common Stock in the following manners: (i) the former profit participating limited partners active in the business of The Goldman Sachs Group, L.P. ("Group L.P.") (the "IPO PMDs") acquired certain shares of Common Stock 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") and the former members (the "SLK Covered Persons" and, together with the Hull Covered Persons, the "Acquisition Covered Persons") of SLK LLC acquired certain shares of Common Stock in exchange for their interests in Hull or SLK LLC, as applicable; and (iii) certain Covered Persons have acquired and will acquire beneficial ownership of certain shares of Common Stock in connection with GS Inc.'s initial public offering and/or pursuant to GS Inc.'s employee compensation, benefit or similar plans. The 7 Reporting Entities have acquired and may in the future acquire beneficial ownership of shares of Common Stock as contributions or gifts made by Covered Persons. Covered Persons may from time to time acquire shares of Common Stock 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 Covered Persons, other than the Acquisition Covered Persons, acquired certain shares of Common Stock in connection with the succession of GS Inc. to the business of Group L.P. and GS Inc.'s initial public offering and/or through certain employee compensation, benefit or similar plans of GS Inc. The Acquisition Covered Persons acquired certain shares of Common Stock in connection with the acquisition by GS Inc. of Hull or the combination of GS Inc. with SLK LLC, as applicable, and through certain employee compensation, benefit or similar plans of GS Inc. The Reporting Entities acquired shares of Common Stock as contributions or gifts made by Covered Persons. Covered Persons may from time to time acquire shares of Common Stock for investment purposes. Except as described herein and in Annex C and except for the acquisition by Covered Persons or their Reporting Entities 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 the acquisition of additional Common Stock by them or their Reporting Entities 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 or Reporting Entity may at any time and from time to time acquire or dispose of shares of Common Stock. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Rows (11) and (13) of the cover page to this Schedule and Appendix 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 set forth for each Covered Person and Reporting Entity: the percentage range of Voting Shares, Shared Ownership Shares, Sixty Day Shares and Other Shares (each as defined on the cover page hereof) as to which there is sole power to vote or direct the vote or to dispose or direct the disposition or shared power to vote or direct the vote or to dispose or direct the disposition. The power to vote Voting 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 or Reporting Entity has effected any transactions in Common Stock in the past 60 days. (d), (e) Not applicable. 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' 8 Agreement 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. The Shareholders' Agreement was amended and restated effective as of the close of business on June 22, 2004. References to the "board of directors" are to the board of directors of The Goldman Sachs Group, Inc. The Covered Persons under the Shareholders' Agreement include all Managing Directors of GS Inc. who participate in the GS Inc. Partner Compensation Plan or Restricted Partner Compensation Plan (each as defined in the Shareholders' Agreement) or any other employee benefit plan specified by the Shareholders' Committee (the "Participating Managing Directors"). The "Voting Shares" include 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 Goldman Sachs Employees' Profit Sharing Retirement Income Plan) and the shares of Common Stock held by the trust underlying a Goldman Sachs Compensation Plan (as defined in the Shareholders' Agreement) and allocated to a Covered Person. The interest of a spouse or domestic partner in a joint account, an economic interest of GS Inc. as pledgee, and the interest of certain persons in the Reporting Entities will be disregarded for the purposes of determining whether a Covered Person is the sole beneficial owner of shares of Common Stock. TRANSFER RESTRICTIONS Each Covered Person has agreed in the Shareholders' Agreement, among other things, to retain sole beneficial ownership of a number of shares of Common Stock at least equal to 25% of such Covered Person's Covered Shares (as defined below) (the "General Transfer Restrictions"). In addition, certain senior officers designated by the Shareholders' Committee have each agreed to retain sole beneficial ownership of a number of shares of Common Stock at least equal to 75% of such Covered Person's Covered Shares (the "Special Transfer Restrictions" and, together with the General Transfer Restrictions, the "Transfer Restrictions"). The same shares may be used to satisfy both the Special Transfer Restrictions and the General Transfer Restrictions. The Transfer Restrictions applicable to a Covered Person terminate upon the death of the Covered Person. Any shares beneficially owned by a Covered Person through a Reporting Entity may be deemed to count toward the satisfaction of the Transfer Restrictions. For these purposes, "Covered Shares," with respect to a Covered Person, will be recalculated each time the Covered Person receives Common Stock underlying an award of restricted stock units, becomes vested in an award under The Goldman Sachs Defined Contribution Plan with respect to fiscal 1999 or 2000 or exercises a stock option (not including, in each case, awards in connection with GS Inc.'s initial public offering). The calculation of Covered Shares will include the gross number of shares underlying such restricted stock units, Defined Contribution Plan awards or stock options, less (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 (all as calculated pursuant to a formula set out in the Shareholders' Agreement). The calculation of Covered Shares will only take into account awards that occurred after the Covered Person became a Participating Managing Director. 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, and stock repurchase programs and tender and exchange offers by GS Inc. for, Common Stock; transfer Common Stock to charities, including charitable foundations; transfer Common Stock held in employee benefit plans; and transfer Common Stock in particular situations (such as transfers to family members, partnerships or trusts), but not generally. 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 outstanding Covered Shares; or if the board of directors is recommending rejection of the tender or exchange offer, by 66 2/3% of the outstanding Covered Shares. 9 In the case of a tender or exchange offer by GS Inc., a majority of the outstanding Covered Shares may also 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 all Voting Shares on each matter upon which a vote of the shareholders is proposed to be taken (the "Preliminary Vote"). Each Voting Share will be voted in accordance with the majority of the votes cast by the Voting Shares in the Preliminary Vote. In elections of directors, each Voting Share will 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. OTHER RESTRICTIONS The Shareholders' Agreement also prohibits 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, a Covered Person may not: participate in a proxy solicitation to or with a Restricted Person; 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 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 Covered Shares. The Shareholders' Agreement may generally be amended at any time by a majority of the outstanding Covered Shares. 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 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 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 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. Currently, Henry M. Paulson, Jr., Robert S. Kaplan and Lloyd C. Blankfein are the members of the Shareholders' Committee. PLEDGE AGREEMENTS On July 31, 2000, certain Covered Persons pledged some of their shares of Common Stock 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. 10 In addition, one or more Covered Persons have pledged in the aggregate 219,000 shares of Common Stock to a bank 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 FORMER EMPLOYEE MANAGING DIRECTORS In connection with the sale by certain Covered Persons (the "Former 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 Former Employee Managing Directors, other than any agency fees and commissions or underwriting commissions or discounts or any transfer taxes incurred by the Former Employee Managing Directors in connection with the sales. GS Inc. also has agreed to indemnify the Former Employee Managing Directors against certain liabilities, including those arising under the Securities Act. DERIVATIVE INSTRUMENTS Certain Covered Persons, Reporting Entities and estate planning entities established by Covered Persons (which are not Reporting Entities) have entered into derivative transactions with regard to shares of Common Stock as described in Annex F. 11 MATERIAL TO BE FILED AS EXHIBITS
Exhibit Description ------- ----------- A. 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)). B. 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)). C. 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)). D. 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)). E. 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)). F. 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)). G. 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)). H. 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.). I. 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.). J. 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)). K. 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.). L. Amended and Restated Shareholders' Agreement, effective as of the close of business on June 22, 2004 (incorporated by reference to Exhibit M to Amendment No. 54 to the Initial Schedule 13D, filed June 22, 2004 (File No. 005-56295)).
12 ANNEX A INFORMATION REQUIRED AS TO EXECUTIVE OFFICERS AND DIRECTORS OF CORPORATE REPORTING ENTITIES.
NAME CITIZENSHIP BUSINESS ADDRESS PRESENT EMPLOYMENT CONVICTIONS OR BENEFICIAL VIOLATIONS OF OWNERSHIP OF THE FEDERAL OR STATE COMMON STOCK OF THE LAWS WITHIN THE GOLDMAN SACHS LAST FIVE YEARS GROUP, INC. - ---------- ----------- ------------------- ------------------ ---------------- ------------------- Steven M. USA 85 Broad Street Managing Director, None Less than 1% of the Bunson New York, NY The Goldman Sachs outstanding shares 10004 Group, Inc. of Common Stock. Russell E. USA 85 Broad Street Managing Director, None Less than 1% of the Makowsky New York, NY The Goldman Sachs outstanding shares 10004 Group, Inc. of Common Stock. 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
13 ANNEX B ITEMS 2(D) AND 2(E). INFORMATION REQUIRED AS TO CERTAIN PROCEEDINGS. None. 14 ANNEX C ITEM 4. PLANNED DISPOSITION OF SECURITIES OF THE ISSUER BY COVERED PERSONS OR REPORTING ENTITIES. None. 15 ANNEX D ITEM 5(A). DESCRIPTION OF SHARES AS TO WHICH THERE IS A RIGHT TO ACQUIRE EXERCISABLE WITHIN 60 DAYS. An aggregate of 12,695,946 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 January 3, 2004, stock options covering 10,190,655 shares of Common Stock deliverable to Covered Persons will vest and become exercisable. The share amounts given above include the gross number of shares of Common Stock underlying these 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 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. Prior to delivery, the shares are included in Sixty Day Shares because the Covered Persons do not have the right to vote the shares. Upon delivery, the shares become Voting Shares. 16 ANNEX E ITEM 5(C). DESCRIPTION OF ALL TRANSACTIONS IN THE COMMON STOCK EFFECTED BY COVERED PERSONS OR REPORTING ENTITIES IN THE PAST 60 DAYS AND NOT PREVIOUSLY REPORTED ON SCHEDULE 13D. The following sales of Voting Shares were made by the following Covered Persons or Reporting Entities through one or more subsidiaries of GS Inc. for cash on the New York Stock Exchange:
COVERED PERSON TRADE DATE NUMBER OF SHARES PRICE PER SHARE - -------------- ---------- ---------------- --------------- Christopher A. Cole October 22, 2004 20,000 $93.17 Henry Cornell October 22, 2004 20,000 $93.00 Neil D. Crowder October 22, 2004 400 $93.67 Neil D. Crowder October 22, 2004 1,100 $93.68 Neil D. Crowder October 22, 2004 1,500 $93.65 John S. Daly October 22, 2004 1,000 $92.97 Celeste A. Guth October 22, 2004 1,000 $93.48 Matthew G. L'Heureux October 22, 2004 100,000 $92.56 L. Peter O'Hagan October 22, 2004 3,000 $93.10 Gregory K. Palm October 22, 2004 75,000 $92.67 Richard H. Powers October 22, 2004 3,724 $92.98 Harvey M. Schwartz October 22, 2004 15,000 $92.80 Mark J. Tracey October 22, 2004 2,220 $93.21 David A. Viniar October 22, 2004 50,000 $92.79
The following sales of Other Shares were made by estate planning entities (which are not Reporting Entities) established by the following Covered Persons through one or more subsidiaries of GS Inc. for cash on the New York Stock Exchange:
COVERED PERSON TRADE DATE NUMBER OF SHARES PRICE PER SHARE - -------------- ---------- ---------------- --------------- Milton R. Berlinski October 22, 2004 5,388 $92.95 David A. Viniar October 22, 2004 3,632 $92.79
The following cashless exercises of stock options were effected by the following Covered Persons, with the indicated number of underlying shares sold through an affiliate of Mellon Investor Services LLC for cash on the New York Stock Exchange:
NUMBER OF NUMBER OF SALES NUMBER OF SHARES COVERED PERSON DATE OF EXERCISE OPTIONS STRIKE PRICE PRICE SHARES SOLD RETAINED -------------- ---------------- ------- ------------ ----- ----------- -------- Philippe J. Altuzarra October 22, 2004 50,000 $53.00 $92.67 50,000 0 John J. Bu October 22, 2004 40,000 $53.00 $92.67 40,000 0 John D. Campbell October 22, 2004 1,000 $53.00 $92.67 1,000 0 Edward K. Eisler October 22, 2004 75,499 $53.00 $92.67 75,499 0
The following charitable contributions of shares of Common Stock were made by the following Covered Persons:
COVERED PERSON TRANSFER DATE NUMBER OF SHARES -------------- ------------- ---------------- David A. Viniar October 22, 2004 6,000
17 ANNEX F ITEM 6. DESCRIPTION OF POSITIONS IN DERIVATIVE INSTRUMENTS OF COVERED PERSONS OR REPORTING ENTITIES. The following Covered Persons or Reporting Entities have written American-style standardized call options or purchased American-Style standardized put options on Voting Shares with the following terms:
CALL WRITTEN OR PUT NUMBER OF STRIKE COVERED PERSON PURCHASED SHARES PRICE MATURITY DATE TRANSACTION DATE -------------- --------- ------ ----- ------------- ---------------- Randolph L. Cowen Call Written 15,000 $ 90.00 January 22, 2005 September 22, 2004 Randolph L. Cowen Call Written 15,000 $ 95.00 January 22, 2005 September 22, 2004 Randolph L. Cowen Call Written 20,000 $100.00 January 22, 2005 September 22, 2004 Peter C. Gerhard Call Written 9,600 $ 95.00 January 22, 2005 September 22, 2004 Peter C. Aberg Call Written 10,000 $100.00 January 22, 2005 September 23, 2004 Paul S. Efron Call Written 10,000 $ 95.00 January 22, 2005 October 4, 2004 Peter C. Gerhard Call Written 15,400 $ 95.00 January 22, 2005 October 4, 2004 Jeffrey M. Moslow Call Written 3,500 $100.00 January 22, 2005 October 4, 2004 George W. Wellde, Jr. Call Written 20,000 $ 95.00 January 22, 2005 October 4, 2004 Greg W. Tebbe Call Written 12,500 $ 95.00 January 22, 2005 October 5, 2004 George N. Mattson Call Written 2,500 $ 90.00 January 22, 2005 October 6, 2004 George N. Mattson Call Written 2,500 $ 95.00 January 22, 2005 October 6, 2004 George N. Mattson Call Written 2,600 $100.00 January 22, 2005 October 6, 2004 H. John Gilbertson, Jr. Call Written 20,000 $ 95.00 January 22, 2005 October 7, 2004 HJS2 Limited Call Written 20,000 $ 95.00 January 22, 2005 October 7, 2004 HJS2 Limited Call Written 20,000 $100.00 January 22, 2005 October 7, 2004 Mark R. Tercek Call Written 20,000 $ 95.00 January 22, 2005 October 8, 2004 Mark R. Tercek Call Written 20,000 $100.00 January 22, 2005 October 8, 2004 E. Gerald Corrigan Call Written 125,000 $100.00 January 21, 2006 October 20, 2004 E. Gerald Corrigan Put Purchased 125,000 $ 90.00 January 21, 2006 October 20, 2004 C. Howard Wietschner Call Written 500 $ 90.00 December 18, 2004 October 20, 2004 Susan A. Willetts Call Written 7,500 $ 90.00 January 22, 2005 October 20, 2004 Susan A. Willetts Call Written 15,000 $ 95.00 April 16, 2005 October 20, 2004 Sanjeev K. Mehra Call Written 50,000 $100.00 January 22, 2005 October 21, 2004 Michael J. Carr Call Written 20,000 $ 95.00 April 16, 2005 October 22, 2004 George N. Mattson Call Written 2,500 $ 95.00 January 22, 2005 October 22, 2004 Michael M. Smith Call Written 3,000 $100.00 January 22, 2005 October 22, 2004 Michael M. Smith Put Purchased 3,000 $ 85.00 January 22, 2005 October 22, 2004
Estate planning entities (which are not Reporting Entities) established by the following Covered Persons have written American-style standardized call options or purchased American-Style standardized put options on Other Shares with the following terms:
CALL WRITTEN OR PUT NUMBER OF STRIKE COVERED PERSON PURCHASED SHARES PRICE MATURITY DATE TRANSACTION DATE -------------- --------- ------ ----- ------------- ---------------- Andrew M. Gordon Call Written 15,000 $100.00 April 16, 2005 September 29, 2004 Andrew M. Gordon Call Written 15,000 $105.00 April 16, 2005 September 29, 2004 Andrew M. Gordon Call Written 1,500 $100.00 April 16, 2005 October 4, 2004 Andrew M. Gordon Call Written 1,500 $105.00 April 16, 2005 October 4, 2004 Byron D. Trott Call Written 10,000 $ 95.00 January 22, 2005 October 22, 2004
18 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: November 9, 2004 By: /s/ Beverly L. O'Toole ------------------------------ Name: Beverly L. O'Toole Title: Attorney-in-Fact 19 EXHIBIT INDEX
Exhibit Description ------- ----------- A. 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)). B. 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)). C. 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)). D. 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)). E. 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)). F. 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)). G. 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)). H. 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.). I. 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.). J. 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)). K. 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.). L. Amended and Restated Shareholders' Agreement, effective as of the close of business on June 22, 2004 (incorporated by reference to Exhibit M to Amendment No. 54 to the Initial Schedule 13D, filed June 22, 2004 (File No. 005-56295)).
-----END PRIVACY-ENHANCED MESSAGE-----