10-K/A 1 d10ka.htm AMENDMENT NO. 1 TO FORM 10-K Amendment No. 1 to Form 10-K
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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 10-K/A

(Amendment No. 1)

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

 

For the fiscal year ended November 28, 2008   Commission File Number: 001-14965

The Goldman Sachs Group, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware   13-4019460

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification No.)

85 Broad Street

New York, N.Y.

   10004
(Address of principal executive offices)   (Zip Code)

(212) 902-1000

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class:

   

Name of each exchange on which registered:

Common stock, par value $.01 per share, and attached Shareholder Protection Rights    New York Stock Exchange

Depositary Shares, Each Representing 1/1,000th Interest in a Share of Floating Rate Non-Cumulative Preferred Stock, Series A

    New York Stock Exchange

Depositary Shares, Each Representing 1/1,000th Interest in a Share of 6.20% Non-Cumulative Preferred Stock, Series B

    New York Stock Exchange

Depositary Shares, Each Representing 1/1,000th Interest in a Share of Floating Rate Non-Cumulative Preferred Stock, Series C

    New York Stock Exchange

Depositary Shares, Each Representing 1/1,000th Interest in a Share of Floating Rate Non-Cumulative Preferred Stock, Series D

    New York Stock Exchange

5.793% Fixed-to-Floating Rate Normal Automatic Preferred Enhanced Capital Securities of Goldman Sachs Capital II (and Registrant’s guarantee with respect thereto)

    New York Stock Exchange

Floating Rate Normal Automatic Preferred Enhanced Capital Securities of Goldman Sachs Capital III (and Registrant’s guarantee with respect thereto)

    New York Stock Exchange

Medium-Term Notes, Series B, Index-Linked Notes due February 2013; Index-Linked Notes due April 2013; Index-Linked Notes due May 2013; Index-Linked Notes due 2010; and Index-Linked Notes due 2011

    NYSE Alternext US

Medium-Term Notes, Series B, 7.35% Notes due 2009; 7.80% Notes due 2010; and Floating Rate Notes due 2011

    New York Stock Exchange

Medium-Term Notes, Series A, Index-Linked Notes due 2037 of GS Finance Corp. (and Registrant’s guarantee with respect thereto)

   NYSE Arca
Medium-Term Notes, Series B, Index-Linked Notes due 2037    NYSE Arca

Securities registered pursuant to Section 12(g) of the Act: None

 

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes  x    No  ¨

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act.    Yes  ¨    No  x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  x    No  ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of the Annual Report on Form 10-K or any amendment to the Annual Report on Form 10-K.  x

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer  x                Accelerated filer  ¨

Non-accelerated filer (Do not check if a smaller reporting company)  ¨                      Smaller reporting company  ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  ¨    No  x

As of May 30, 2008, the aggregate market value of the common stock of the registrant held by non-affiliates of the registrant was approximately $68.2 billion.

As of January 16, 2009, there were 461,784,433 shares of the registrant’s common stock outstanding.

Documents incorporated by reference: Portions of The Goldman Sachs Group, Inc.’s Preliminary Proxy Statement for its 2009 Annual Meeting of Shareholders to be held on May 8, 2009, filed with the SEC on March 27, 2009, are incorporated by reference into this Amendment No. 1 on Form 10-K/A in response to Part III, Items 10, 11, 12, 13 and 14. The portions of the Preliminary Proxy Statement so incorporated by reference are filed as an exhibit hereto pursuant to Rule 12b-23 under the U.S. Securities Exchange Act of 1934.

 

 

 

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EXPLANATORY NOTE

Pursuant to General Instruction G to Form 10-K, this Amendment No. 1 on Form 10-K/A (Amendment No. 1) to our Annual Report on Form 10-K for the fiscal year ended November 28, 2008, which was filed with the U.S. Securities and Exchange Commission on January 27, 2009 (Original Filing), is being filed for the sole purpose of including information in Part III, Items 10 through 14, because the definitive Proxy Statement for our 2009 Annual Meeting of Shareholders will not be filed with the SEC within 120 days after the end of our 2008 fiscal year. Such information is being incorporated into this Amendment No. 1 by reference to portions of the Preliminary Proxy Statement for our 2009 Annual Meeting of Shareholders, which was filed with the SEC on March 27, 2009 (Preliminary Proxy Statement). The reference on the cover of the Original Filing to the incorporation by reference to portions of our definitive proxy statement into Part III of the Original Filing is hereby deleted.

The portions of the Preliminary Proxy Statement incorporated herein by reference are filed as an exhibit hereto pursuant to Rule 12b-23 under the U.S. Securities Exchange Act of 1934 (Exchange Act). The portions of the Preliminary Proxy Statement that are not expressly incorporated by reference into Part III, Items 10 through 14, shall not be deemed incorporated by reference into, and are not part of, this Amendment No. 1.

In accordance with Rule 12b-15 under the Exchange Act, Part III, Items 10 through 14 of the Original Filing have been amended and restated in their entirety, and Part IV, Item 15 of the Original Filing has been amended and restated solely to include as exhibits the new certifications required by Rule 13a-14(a) under the Exchange Act and the Preliminary Proxy Statement. This Amendment No. 1 does not amend or otherwise update any other information in the Original Filing. Accordingly, this Amendment No. 1 should be read in conjunction with the Original Filing and with our filings with the SEC subsequent to the Original Filing.

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THE GOLDMAN SACHS GROUP, INC.

ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED NOVEMBER 28, 2008

INDEX

 

Form 10-K Item Number:

    Page
No.

PART III

    1

Item 10.

    Directors, Executive Officers and Corporate Governance    1

Item 11.

    Executive Compensation    1

Item 12.

   

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

    1

Item 13.

    Certain Relationships and Related Transactions, and Director Independence    2

Item 14.

    Principal Accountant Fees and Services    2

PART IV

    3

Item 15.

    Exhibits and Financial Statement Schedules    3

SIGNATURES

   10

 

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PART III

Item 10.    Directors, Executive Officers and Corporate Governance

Information relating to our executive officers is included on pages 51 and 52 of the Original Filing. Information relating to our directors, including our audit committee and audit committee financial experts and the procedures by which shareholders can recommend director nominees, and our executive officers is set forth in the portions of our Preliminary Proxy Statement that are denoted as responsive to Item 10 under Exhibit 99.2 in Part IV, Item 15. These portions of the Preliminary Proxy Statement are included in such Exhibit 99.2 and are incorporated herein by reference. Information relating to our Code of Business Conduct and Ethics that applies to our senior financial officers, as defined in the Code, is included in Part I, Item 1 of the Original Filing.

Item 11.    Executive Compensation

Information relating to our executive officer and director compensation and the report of the compensation committee of our board of directors is set forth in the portions of our Preliminary Proxy Statement that are denoted as responsive to Item 11 under Exhibit 99.2 in Part IV, Item 15. These portions of the Preliminary Proxy Statement are included in such Exhibit 99.2 and are incorporated herein by reference.

Pursuant to Instructions 1 and 2 to Item 407(e)(5) of the SEC’s Regulation S-K, the report of our compensation committee included in Exhibit 99.2 shall be deemed furnished with the SEC and shall not be deemed to be “filed” as part of this Amendment No. 1 for the purposes of Section 18 of the Exchange Act or, unless we indicate otherwise, incorporated by reference into any other filing under the U.S. Securities Act of 1933 or the Exchange Act.

Item 12.    Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

Information relating to security ownership of certain beneficial owners of our common stock and information relating to the security ownership of our management is set forth in the portions of our Preliminary Proxy Statement that are denoted as responsive to Item 12 under Exhibit 99.2 in Part IV, Item 15. These portions of the Preliminary Proxy Statement are included in such Exhibit 99.2 and are incorporated herein by reference.

 

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The following table provides information generally as of November 28, 2008, the last day of fiscal 2008, regarding securities to be issued on exercise of stock options, and securities remaining available for issuance under our equity compensation plans that were in effect during fiscal 2008.

 

    

Plan Category

    Number of
Securities to
be Issued
Upon
Exercise of
Outstanding
Options,
Warrants
and Rights		     Weighted-
Average
Exercise
Price of
Outstanding
Options,
Warrants and
Rights		     Number of
Securities
Remaining
Available for
Future Issuance
Under Equity
Compensation
Plans (Excluding
Securities
Reflected in the
Second Column)		  

Equity compensation plans approved by security holders

    The Goldman Sachs Amended and Restated Stock Incentive Plan (1)    33,639,132  (2)   $ 109.47  (2)   216,990,058  (3)

Equity compensation plans not approved by security holders

    None    —         —       —    
                 

Total

       33,639,132  (2)     216,990,058  (3)(4)
                 

 

(1)

The Goldman Sachs Amended and Restated Stock Incentive Plan (SIP) was approved by the shareholders of Goldman Sachs at our 2003 Annual Meeting of Shareholders and is a successor plan to The Goldman Sachs 1999 Stock Incentive Plan (1999 Plan), which was approved by our shareholders immediately prior to our initial public offering in May 1999 and under which no additional awards have been granted since approval of the SIP.

(2)

Includes options that are subject to vesting and other conditions.

(3)

Of these shares, 54,852,028 shares may be issued pursuant to outstanding restricted stock units, including 54,824,666 shares granted under the SIP and 27,362 shares granted under the 1999 Plan; 151,230 shares may be issued pursuant to outstanding performance-based units granted under the SIP.

(4)

Represents shares remaining to be issued under the SIP (217,388,173 shares) and the 1999 Plan (27,362 shares). The total number of shares of common stock that may be delivered pursuant to awards granted under the SIP initially may not exceed 250,000,000 shares. Beginning November 29, 2008 and each fiscal year thereafter, the number of shares of common stock that may be delivered pursuant to awards granted after April 1, 2003 under the SIP may not exceed 5% of our issued and outstanding shares of common stock, determined as of the last day of the immediately preceding fiscal year, increased by the number of shares that were available for awards in previous fiscal years but were not, at the date of determination, covered by awards granted in previous years.

Item 13.    Certain Relationships and Related Transactions, and Director Independence

Information regarding certain relationships and related transactions and director independence is set forth in the portions of our Preliminary Proxy Statement that are denoted as responsive to Item 13 under Exhibit 99.2 in Part IV, Item 15. These portions of the Preliminary Proxy Statement are included in such Exhibit 99.2 and are incorporated herein by reference.

Item 14.    Principal Accountant Fees and Services

Information regarding principal accountant fees and services is set forth in the portion of our Preliminary Proxy Statement that is denoted as responsive to Item 14 under Exhibit 99.2 in Part IV, Item 15. This portion of the Preliminary Proxy Statement is included in such Exhibit 99.2 and is incorporated herein by reference.

 

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PART IV

Item 15.    Exhibits and Financial Statement Schedules

 

(a) Documents filed as part of this Report:

 

  1. Consolidated Financial Statements

The consolidated financial statements required to be filed in our Annual Report on Form 10-K are included in Part II, Item 8 of the Original Filing.

 

  2. Exhibits

 

    2.1 Plan of Incorporation (incorporated by reference to the corresponding exhibit to the Registrant’s registration statement on Form S-1 (No. 333-74449)).

 

    3.1 Restated Certificate of Incorporation of The Goldman Sachs Group, Inc. (incorporated by reference to the corresponding exhibit to the Original Filing).

 

    3.2 Amended and Restated By-Laws of The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed December 12, 2006).

 

    4.1 Indenture, dated as of May 19, 1999, between The Goldman Sachs Group, Inc. and The Bank of New York, as trustee (incorporated by reference to Exhibit 6 to the Registrant’s registration statement on Form 8-A, filed June 29, 1999).

 

    4.2 Subordinated Debt Indenture, dated as of February 20, 2004, between The Goldman Sachs Group, Inc. and The Bank of New York, as trustee (incorporated by reference to Exhibit 4.2 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 28, 2003).

 

    4.3 Warrant Indenture, dated as of February 14, 2006, between The Goldman Sachs Group, Inc. and The Bank of New York, as trustee (incorporated by reference to Exhibit 4.34 to the Registrant’s Post-Effective Amendment No. 3 to Form S-3, filed on March 1, 2006).

 

    4.4 Senior Debt Indenture, dated as of December 4, 2007, among GS Finance Corp., as issuer, The Goldman Sachs Group, Inc., as guarantor, and The Bank of New York, as Trustee (incorporated by reference to Exhibit 4.69 to the Registrant’s Post-Effective Amendment No. 10 to Form S-3, filed on December 4, 2007).

 

    4.5 Form of floating rate senior debt security (TLGP) issued under the Senior Debt Indenture, dated as of July 16, 2008, between The Goldman Sachs Group, Inc. and The Bank of New York Mellon, as trustee (incorporated by reference to the corresponding exhibit to the Original Filing).

 

    4.6 Form of fixed rate senior debt security (TLGP) issued under the Senior Debt Indenture, dated as of July 16, 2008, between The Goldman Sachs Group, Inc. and The Bank of New York Mellon, as trustee (incorporated by reference to the corresponding exhibit to the Original Filing).

 

    4.7 Form of floating rate Medium-Term Note, Series D (TLGP) issued under the Senior Debt Indenture, dated as of July 16, 2008, between The Goldman Sachs Group, Inc. and The Bank of New York Mellon, as trustee (incorporated by reference to the corresponding exhibit to the Original Filing).

 

    4.8 Form of fixed rate Medium-Term Note, Series D (TLGP) issued under the Senior Debt Indenture, dated as of July 16, 2008, between The Goldman Sachs Group, Inc. and The Bank of New York Mellon, as trustee (incorporated by reference to the corresponding exhibit to the Original Filing).

 

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    4.9 Senior Debt Indenture, dated as of July 16, 2008, between The Goldman Sachs Group, Inc. and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.82 to the Registrant’s Post-Effective Amendment No. 11 to Form S-3 (No. 333-130074), filed July 17, 2008).

 

    4.10 Senior Debt Indenture, dated as of October 10, 2008, among GS Finance Corp., as issuer, The Goldman Sachs Group, Inc., as guarantor, and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.70 to the Registrant’s registration statement on Form S-3 (No. 333-154173), filed October 10, 2008).

Certain instruments defining the rights of holders of long-term debt securities of the Registrant and its subsidiaries are omitted pursuant to Item 601(b)(4)(iii) of Regulation S-K. The Registrant hereby undertakes to furnish to the SEC, upon request, copies of any such instruments.

 

 

10.1

The Goldman Sachs Amended and Restated Stock Incentive Plan (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.2

The Goldman Sachs Defined Contribution Plan (incorporated by reference to Exhibit 10.16 to the Registrant’s registration statement on Form S-1 (No. 333-75213)).†

 

 

10.3

The Goldman Sachs Amended and Restated Restricted Partner Compensation Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended February 24, 2006).†

 

 

10.4

Form of Employment Agreement for pre-IPO Participating Managing Directors (incorporated by reference to Exhibit 10.19 to the Registrant’s registration statement on Form S-1 (No. 333-75213)).†

 

 

10.5

Form of Agreement Relating to Noncompetition and Other Covenants (incorporated by reference to Exhibit 10.20 to the Registrant’s registration statement on Form S-1 (No. 333-75213)).†

 

 

10.6

Form of Option Agreement (Discretionary Options) (incorporated by reference to Exhibit 10.24 to the Registrant’s registration statement on Form S-1 (No. 333-75213)).†

 

  10.7 Tax Indemnification Agreement, dated as of May 7, 1999, by and among The Goldman Sachs Group, Inc. and various parties (incorporated by reference to Exhibit 10.25 to the Registrant’s registration statement on Form S-1 (No. 333-75213)).

 

  10.8 Amended and Restated Shareholders’ Agreement, dated June 22, 2004, among The Goldman Sachs Group, Inc. and various parties (incorporated by reference to Exhibit M to Amendment No. 54 to Schedule 13D, filed June 23, 2004, relating to the Registrant’s common stock (No. 005-56295)).

 

  10.9 Instrument of Indemnification (incorporated by reference to Exhibit 10.27 to the Registrant’s registration statement on Form S-1 (No. 333-75213)).

 

  10.10 Form of Indemnification Agreement (incorporated by reference to Exhibit 10.28 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 26, 1999).

 

  10.11 Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit G to Amendment No. 1 to Schedule 13D, filed December 17, 1999, relating to the Registrant’s common stock (No. 005-56295)).

 

  10.12 Supplemental Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit H to Amendment No. 1 to Schedule 13D, filed December 17, 1999, relating to the Registrant’s common stock (No. 005-56295)).

 

  10.13 Form of Indemnification Agreement (incorporated by reference to Exhibit 10.44 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 26, 1999).

 

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  10.14 Form of Indemnification Agreement, dated as of July 5, 2000 (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended August 25, 2000).

 

  10.15 Amendment No. 1, dated as of September 5, 2000, to the Tax Indemnification Agreement, dated as of May 7, 1999 (incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the period ended August 25, 2000).

 

  10.16 Supplemental Registration Rights Instrument, dated as of December 21, 2000 (incorporated by reference to Exhibit AA to Amendment No. 12 to Schedule 13D, filed January 23, 2001, relating to the Registrant’s common stock (No. 005-56295)).

 

  10.17 Supplemental Registration Rights Instrument, dated as of December 21, 2001 (incorporated by reference to Exhibit 4.4 to the Registrant’s registration statement on Form S-3 (No. 333-74006)).

 

  10.18 Supplemental Registration Rights Instrument, dated as of December 20, 2002 (incorporated by reference to Exhibit 4.4 to the Registrant’s registration statement on Form S-3 (No. 333-101093)).

 

 

10.19

Letter, dated February 6, 2001, from The Goldman Sachs Group, Inc. to Dr. Ruth J. Simmons (incorporated by reference to Exhibit 10.63 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 24, 2000).†

 

 

10.20

Letter, dated February 6, 2001, from The Goldman Sachs Group, Inc. to Mr. John H. Bryan (incorporated by reference to Exhibit 10.64 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 24, 2000).†

 

 

10.21

Letter, dated February 6, 2001, from The Goldman Sachs Group, Inc. to Mr. James A. Johnson (incorporated by reference to Exhibit 10.65 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 24, 2000).†

 

 

10.22

Letter, dated December 18, 2002, from The Goldman Sachs Group, Inc. to Mr. William W. George (incorporated by reference to Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 29, 2002).†

 

 

10.23

Letter, dated June 20, 2003, from The Goldman Sachs Group, Inc. to Mr. Claes Dahlbäck (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended May 30, 2003).†

 

  10.24 Supplemental Registration Rights Instrument, dated as of December 19, 2003 (incorporated by reference to Exhibit 4.4 to the Registrant’s registration statement on Form S-3 (No. 333-110371)).

 

 

10.25

Letter, dated March 31, 2004, from The Goldman Sachs Group, Inc. to Ms. Lois D. Juliber (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended May 28, 2004).†

 

 

10.26

Letter, dated April 6, 2005, from The Goldman Sachs Group, Inc. to Mr. Stephen Friedman (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed April 8, 2005).†

 

 

10.27

Form of Amendment, dated November 27, 2004, to Agreement Relating to Noncompetition and Other Covenants, dated May 7, 1999 (incorporated by reference to Exhibit 10.32 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 26, 2004).†

 

 

10.28

Form of RSU Award Agreement for PMD Discount Stock Program (subject to transfer restrictions) (incorporated by reference to Exhibit 10.29 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

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10.29

Form of RSU Award Agreement for PMD Discount Stock Program (not subject to transfer restrictions) (incorporated by reference to Exhibit 10.30 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.30

Form of RSU Award Agreement for PMD Discount Stock Program (subject to transfer restrictions) (French alternative award) (incorporated by reference to Exhibit 10.31 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.31

Form of RSU Award Agreement for PMD Discount Stock Program (not subject to transfer restrictions) (French alternative award) (incorporated by reference to Exhibit 10.32 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.32

Form of RSU Award Agreement for PMD Discount Stock Program (U.K. employee benefit trusts) (incorporated by reference to Exhibit 10.33 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.33

Form of Year-End Restricted Stock Award (incorporated by reference to Exhibit 10.34 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.34

Form of Year-End Restricted Stock Award in Connection with Outstanding RSU Awards (incorporated by reference to Exhibit 10.35 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.35

The Goldman Sachs Group, Inc. Non-Qualified Deferred Compensation Plan for U.S. Participating Managing Directors (terminated as of December 15, 2008) (incorporated by reference to Exhibit 10.36 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.36

Form of Year-End Option Award Agreement (incorporated by reference to the corresponding exhibit to the Original Filing). †

 

 

10.37

Form of Year-End RSU Award Agreement (not fully vested upon grant) (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.38

Form of Year-End RSU Award Agreement (fully vested upon grant) (incorporated by reference to Exhibit 10.37 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.39

Form of Year-End RSU Award Agreement (French alternative award) (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.40

Amendments to 2005 and 2006 Year-End RSU and Option Award Agreements (incorporated by reference to Exhibit 10.44 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30, 2007).†

 

 

10.41

Form of Non-Employee Director Option Award Agreement (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.42

Form of Non-Employee Director RSU Award Agreement (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.43

Description of Non-Employee Director Compensation (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

  10.44 Ground Lease, dated August 23, 2005, between Battery Park City Authority d/b/a/ Hugh L. Carey Battery Park City Authority, as Landlord, and Goldman Sachs Headquarters LLC, as Tenant (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed August 26, 2005).

 

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  10.45 General Guarantee Agreement, dated January 30, 2006, made by The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit 10.45 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 25, 2005).

 

 

10.46

Letter, dated November 10, 2006, from The Goldman Sachs Group, Inc. to Mr. Rajat K. Gupta (incorporated by reference to Exhibit 99.1 to the Registrant’s Current Report on Form 8-K, filed November 13, 2006).†

 

 

10.47

Goldman, Sachs & Co. Executive Life Insurance Policy and Certificate with Metropolitan Life Insurance Company for Participating Managing Directors (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended August 25, 2006).†

 

 

10.48

Form of Goldman, Sachs & Co. Executive Life Insurance Policy with Pacific Life & Annuity Company for Participating Managing Directors, including policy specifications and form of restriction on Policy Owner’s Rights (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended August 25, 2006).†

 

 

10.49

Form of Signature Card for Equity Awards (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.50

Form of Employment Agreement for post-IPO Participating Managing Directors (incorporated by reference to Exhibit 10.50 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 24, 2006).†

 

 

10.51

Form of Second Amendment, dated November 25, 2006, to Agreement Relating to Noncompetition and Other Covenants, dated May 7, 1999, as amended effective November 27, 2004 (incorporated by reference to Exhibit 10.51 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended November 24, 2006).†

 

 

10.52

Description of PMD Retiree Medical Program (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended February 29, 2008).†

 

 

10.53

Letter, dated June 28, 2008, from The Goldman Sachs Group, Inc. to Mr. Lakshmi N. Mittal (incorporated by reference to Exhibit 99.1 to the Registrant’s Current Report on Form 8-K, filed June 30, 2008).†

 

  10.54 Securities Purchase Agreement, dated September 29, 2008, between The Goldman Sachs Group, Inc. and Berkshire Hathaway Inc. (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended August 29, 2008).

 

  10.55 General Guarantee Agreement, dated October 21, 2008, made by The Goldman Sachs Group, Inc. relating to the obligations of Goldman Sachs Bank USA (incorporated by reference to Exhibit 4.85 to the Registrant’s Post-Effective Amendment No. 1 to Form S-3, filed October 22, 2008).

 

  10.56 Form of Letter Agreement between The Goldman Sachs Group, Inc. and each of Lloyd C. Blankfein, Gary D. Cohn, Jon Winkelried and David A. Viniar (incorporated by reference to Exhibit O to Amendment No. 70 to Schedule 13D, filed October 1, 2008, relating to the Registrant’s common stock (No. 005-56295)).

 

  10.57 Letter Agreement, dated as of October 26, 2008, including Securities Purchase Agreement—Standard Terms incorporated by reference therein, between The Goldman Sachs Group, Inc. and the United States Department of the Treasury (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed October 28, 2008).

 

 

10.58

Form of Letter Agreement, dated October 28, 2008, between The Goldman Sachs Group, Inc. and its senior executive officers relating to executive compensation limitations under the U.S. Treasury Department’s Capital Purchase Program (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

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  10.59 General Guarantee Agreement, dated November 24, 2008, made by The Goldman Sachs Group, Inc. relating to the obligations of Goldman Sachs Bank (Europe) PLC (incorporated by reference to the corresponding exhibit to the Original Filing).

 

  10.60 Guarantee Agreement, dated November 28, 2008, between The Goldman Sachs Group, Inc. and Goldman Sachs Bank USA (incorporated by reference to the corresponding exhibit to the Original Filing).

 

  10.61 Collateral Agreement, dated November 28, 2008, between The Goldman Sachs Group, Inc., Goldman Sachs Bank USA and each other party that becomes a pledgor pursuant thereto (incorporated by reference to the corresponding exhibit to the Original Filing).

 

 

10.62

Form of Performance-Based One-Time RSU Award Agreement (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.63

Form of Make-Whole One-Time RSU Award Agreement (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.64

Form of Incentive One-Time RSU Award Agreement (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.65

Form of Year-End Supplemental RSU Award Agreement (employees in France) (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.66

Form of Signature Card for Equity Awards (employees in Asia outside China) (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.67

Form of Signature Card for Equity Awards (employees in China) (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.68

Amendments to Certain Equity Award Agreements (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

 

10.69

Amendments to Certain Non-Employee Director Equity Award Agreements (incorporated by reference to the corresponding exhibit to the Original Filing).†

 

  12.1 Statement re: Computation of Ratios of Earnings to Fixed Charges and Ratios of Earnings to Combined Fixed Charges and Preferred Stock Dividends (incorporated by reference to the corresponding exhibit to the Original Filing).

 

  21.1 List of significant subsidiaries of The Goldman Sachs Group, Inc. (incorporated by reference to the corresponding exhibit to the Original Filing).

 

  23.1 Consent of Independent Registered Public Accounting Firm (incorporated by reference to the corresponding exhibit to the Original Filing).

 

  24.1 Powers of Attorney (incorporated by reference to the corresponding exhibit to the Original Filing).

 

  31.1 Rule 13a-14(a) Certifications with respect to the Original Filing (incorporated by reference to the corresponding exhibit to the Original Filing).

 

  31.2 Rule 13a-14(a) Certifications with respect to this Amendment No. 1.

 

  32.1 Section 1350 Certifications (incorporated by reference to the corresponding exhibit to the Original Filing).

 

  99.1 Report of Independent Registered Public Accounting Firm on Selected Financial Data (incorporated by reference to the corresponding exhibit to the Original Filing).

 

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  99.2 The Registrant’s Preliminary Proxy Statement, of which the portions under the captions, and on the pages, identified below are incorporated by reference into this Amendment No. 1, as specified herein:

Responsive to Item 10

“Independence of Non-Employee Directors” (pages 6 to 8).

“Nominees for Election to our Board” (pages 8 to 11).

“Board Meetings and Committees” (pages 12 and 13).

“Section 16(a) Beneficial Ownership Reporting Compliance” (page 51).

“Shareholder Recommendations for Director Candidates” (page 52).

Responsive to Item 11

“Compensation Discussion and Analysis” (pages 14 to 17).

“Executive Compensation” (pages 18 to 27).

“Non-Employee Director Compensation” (pages 28 and 29).

“Report of our Compensation Committee” (pages 35 and 36).

Responsive to Item 12

“How is voting affected by shareholders who participate in certain Goldman Sachs Partner Compensation plans?” (page 5).

“Beneficial Ownership of Directors and Executive Officers” (pages 39 to 41).

“Beneficial Owners of More Than Five Percent” (page 42).

Responsive to Item 13

“Independence of Non-Employee Directors” (pages 6 to 8).

“Certain Relationships and Related Transactions” (pages 30 to 32).

Responsive to Item 14

“Ratification of Appointment of Independent Registered Public Accounting Firm” (page 43).

 

† This exhibit is a management contract or a compensatory plan or arrangement.

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly authorized.

 

THE GOLDMAN SACHS GROUP, INC.
By:  

/s/    DAVID A. VINIAR        

  Name:     David A. Viniar
  Title:  Chief Financial Officer

Date: March 27, 2009

 

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