UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)
Recovery Engineering, Inc.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
756269106
(CUSIP Number)
David J. Greenwald, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
August 26, 1999
(Date of Event which Requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to report
the acquisition which 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
[ ].
<PAGE>
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CUSIP NO. 756269106 PAGE 2 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Goldman, Sachs & Co.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF/OO
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 1,011,101
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,011,101
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,011,101
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.3%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
BD-PN-IA
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 3 OF 55 PAGES
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- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
The Goldman Sachs Group, Inc.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 13,000
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 1,011,101
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 13,000
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
1,011,101
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,024,101
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.5%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
HC-CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 4 OF 55 PAGES
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- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
GS Capital Partners II, L.P.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delawware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 633,767
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
633,767
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
633,767
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.5%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 5 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
GS Capital Partners II Offshore, L.P.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 251,948
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
251,948
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
251,948
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.0%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 6 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
GS Capital Partners II (Germany) Civil Law Parntership
(with limitation of liability)
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 23,376
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
23,376
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
23,376
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 7 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
GS Advisors, L.P.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 633,767
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
633,767
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
633,767
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.5%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 8 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
GS Advisors II (Cayman), L.P.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 251,948
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
251,948
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
251,948
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.0%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 9 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Goldman, Sachs & Co. oHG
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 23,376
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
23,376
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
23,376
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 10 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Stone Street Fund 1996, L.P.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 60,191
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
60,191
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
60,191
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.0%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 11 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Bridge Street Fund 1996, L.P.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 40,819
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
40,819
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
40,819
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
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CUSIP NO. 756269106 PAGE 12 OF 55 PAGES
- --------------------- ---------------------
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Stone Street Empire Corp.
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
[ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 101,010
EACH -----------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0
WITH -----------------------------------------------------
10. SHARED DISPOSITIVE POWER
101,010
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
101,010
- --------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
<PAGE>
CUSIP NO. 756269106 PAGE 13 OF 55 PAGES
This Amendment No. 5 ("Amendment No. 5") is being filed by GS Capital
Partners II, L.P. ("GSCP"), GS Capital Partners II Offshore, L.P. ("GSCP II
Offshore"), GS Capital Partners II (Germany) Civil Law Partnership (with
limitation of liability) ("GSCP II Germany," and together with GSCP and GSCP II
Offshore, "GSCP II"), GS Advisors, L.P. ("GS Advisors"), GS Advisors II
(Cayman), L.P. ("GS Advisors Cayman"), Goldman, Sachs & Co. oHG ("GS oHG"),
Stone Street Fund 1996, L.P. ("Stone Street"), Bridge Street Fund 1996, L.P.
("Bridge Street," and together with Stone Street, the "Stone/Bridge Funds"),
Stone Street Empire Corp. ("Empire Corp."), Goldman, Sachs & Co. ("Goldman
Sachs") and The Goldman Sachs Group, Inc. ("GS Group," and together with GSCP,
GSCP II Offshore, GSCP II Germany, GS Advisors, GS Advisors Cayman, GS oHG,
Stone Street, Bridge Street, Empire Corp. and Goldman Sachs, the "Filing
Persons")(FN1) to amend and supplement the Statement on Schedule 13D (the
"Original Schedule 13D") filed by the Filing Persons on July 29, 1996, Amendment
No. 1 to the Original Schedule 13D ("Amendment No. 1"), filed by the Filing
Persons on April 9, 1997, Amendment No. 2 to the Original Schedule 13D filed by
the Filing Persons on April 29, 1997 ("Amendment No. 2"), Amendment No. 3 to the
Original Schedule 13D filed by the Filing Persons on October 2, 1997 ("Amendment
No. 3") and Amendment No.4 to the Original Schedule 13D filed by the Filing
Persons on April 28, 1998 ("Amendment No. 4"), in respect of the Common Stock,
par value $0.01 per share (the "Common Stock"), of Recovery Engineering, Inc., a
Minnesota corporation (the "Company"). This Amendment No. 5 is being filed to
report that GSCP II and the Stone/Bridge Funds (collectively, the "Limited
Partnerships") have entered into a letter agreement with the Company (the
"Letter Agreement") pursuant to which, among other things, the Limited
Partnerships consent, for the purposes of Section 6.1(a) of the Securities
Purchase Agreement, to the transactions contemplated by the Agreement and Plan
of Merger, dated as of August 26, 1999, by and among the Company, The Procter &
Gamble Company ("Procter & Gamble") and Tenzing, Inc. (the "Merger Agreement").
Capitalized terms used but not defined herein shall have the respective meanings
given to them in the Original Schedule 13D.
- --------------
[FN]
1 Neither the Original Schedule 13D, Amendment No. 1, Amendment No. 2,
Amendment No. 3, Amendment No. 4 nor anything contained therein or herein
shall be construed as an admission that any Filing Person constitutes a
"person" for any purpose other than Section 13(d) of the Securities
Exchange Act of 1934, as amended.
<PAGE>
CUSIP NO. 756269106 PAGE 14 OF 55 PAGES
Item 2. Identity and Background.
Item 2 is hereby amended and restated as follows:
Each of GSCP, a Delaware limited partnership, GSCP II Offshore, a
Cayman Islands exempted limited partnership, and GSCP II Germany, a German civil
law partnership, was formed for the purpose of investing in equity and
equity-related securities primarily acquired or issued in leveraged
acquisitions, reorganizations and other private equity transactions. GS
Advisors, a Delaware limited partnership, is the sole general partner of GSCP.
GS Advisors Cayman, a Cayman Islands exempted limited partnership, is the sole
general partner of GSCP II Offshore. GS oHG is the sole managing partner of GSCP
II Germany. Stone Street and Bridge Street, each a Delaware limited partnership,
were formed for the purpose of investing in equity and equity-related securities
primarily acquired or issued in leveraged acquisitions, reorganizations and
other private equity transactions and in other financial instruments. Empire
Corp., a Delaware corporation, is the sole general partner of Stone Street and
the sole managing general partner of Bridge Street. Goldman Sachs, a New York
limited partnership, is an investment banking firm and a member of the New York
Stock Exchange, Inc. and other national exchanges. Goldman Sachs is a wholly
owned direct and indirect subsidiary of GS Group. Goldman Sachs also serves as
the investment manager for GSCP, GSCP II Offshore and GSCP II Germany. GS Group
is a Delaware corporation and a holding company that (directly or indirectly
through subsidiaries or affiliated companies or both) is a leading investment
banking organization and is a successor in interest to The Goldman Sachs Group,
L.P., which was merged with and into GS Group on May 7, 1999.
The principal business address of each Filing Person (other than GSCP
II Offshore, GS Advisors Cayman, GSCP II Germany and GS oHG) is 85 Broad Street,
New York, NY 10004. The principal business address for each of GSCP II Offshore
and GS Advisors Cayman is c/o Maples and Calder, P.O. Box 309, Grand Cayman,
Cayman Islands. The principal business address for each of GSCP II Germany and
GS oHG is MesseTurm, 60308 Frankfurt am Main, Germany.
The name, business address, present principal occupation or employment
and citizenship of each director of GS Group are set forth in the amended
Schedule I hereto, to read in its entirety as attached hereto, and are
incorporated herein by reference. The name, business address, present principal
occupation or employment and citizenship of each director and executive officer
of GS Advisors, Inc. and GS Advisors II, Inc., each a Delaware corporation and
the sole general partner of GS Advisors and GS Advisors Cayman, respectively,
are set forth in the amended Schedules II-A-i and II-A-ii hereto, respectively,
to read in their entirety as attached hereto, and are incorporated herein by
reference.
<PAGE>
CUSIP NO. 756269106 PAGE 15 OF 55 PAGES
The name, business address, present principal occupation or employment and
citizenship of each director and executive officer of Empire Corp., the sole
general partner of Stone Street and the managing general partner of Bridge
Street, are set forth in the amended Schedule II-A-iii hereto, to read in its
entirety as attached hereto, and are incorporated herein by reference. The name,
business address, present principal occupation or employment and citizenship of
each executive officer and director of Goldman, Sachs & Co. Finanz GmbH, which
is the sole managing general partner of GS oHG, are set forth in the amended
Schedule II-B hereto, to read in its entirety as attached hereto, and are
incorporated herein by reference.
During the last five years, none of the Filing Persons, or, to the
knowledge of each of the Filing Persons, any of the persons listed on Schedules
I, II-A-i, II-A-ii, II-A-iii or II-B hereto, (i) has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) has been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is 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 and Other Consideration.
Paragraph (b) of Item 3 of the Original Schedule 13D, as amended, is
supplemented with the following paragraphs:
On August 3, 1999, Robert R. Gheewalla, a Vice President of Goldman
Sachs, in his capacity as director of the Company, received, pursuant to the
Company's 1993 Director Stock Option Plan and pursuant to a Directors'
Nonqualified Stock Option Agreement entered into between Mr. Gheewalla and the
Company (which agreement is substantially in the form of the option agreement
attached as exhibit (1) to Amendment No. 1), a Director Option, entitling Mr.
Gheewalla to purchase from the Company, 4,000 shares of Common Stock at $24.01
per share, and 4,000 shares of Common Stock at $25.82 per share. Mr. Gheewalla
has entered into an agreement (the "Gheewalla/GS Group Agreement") pursuant to
which he has agreed, among other things, that he holds the Director Options, and
each share of Common Stock issuable upon the exercise thereof, in trust for the
benefit of GS Group. A copy of the Gheewalla/GS Group Agreement is attached as
Exhibit (2) to this Amendment No. 5.
Item 4. Purpose of Transaction.
The Limited Partnerships and the Company have entered into the Letter
Agreement, pursuant to which the Limited
<PAGE>
CUSIP NO. 756269106 PAGE 16 OF 55 PAGES
Partnerships have consented to, among other things, the transactions
contemplated by the Merger Agreement. See Item 6.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended as follows:
(a) As of September 3, 1999, each of GSCP and GS Advisors may be deemed
to have beneficially owned, by reason of ownership of Notes by GSCP, an
aggregate of 633,767 shares of Common Stock, representing in the aggregate
approximately 9.5% of the shares of Common Stock reported to be outstanding as
of July 30, 1999 in the Company's most recent Quarterly Report on Form 10-Q for
the quarter ended June 30, 1999 (the "Company's 10-Q"), and as calculated in
accordance with Rule 13d-3(d)(1).
As of September 3, 1999, each of GSCP II Offshore and GS Advisors
Cayman may be deemed to have beneficially owned, by reason of ownership of Notes
by GSCP II Offshore, an aggregate of 251,948 shares of Common Stock,
representing in the aggregate approximately 4.0% of the shares of Common Stock
reported to be outstanding as of July 30, 1999 in the Company's 10-Q and as
calculated in accordance with Rule 13d-3(d)(1).
As of September 3, 1999, each of GSCP II Germany and GS oHG may be
deemed to have beneficially owned, by reason of ownership of Notes by GSCP II
Germany, an aggregate of 23,376 shares of Common Stock, representing in the
aggregate approximately 0.4% of the shares of Common Stock reported to be
outstanding as of July 30, 1999 in the Company's 10-Q and as calculated in
accordance with Rule 13d-3(d)(1).
As of September 3, 1999, Stone Street may be deemed to have
beneficially owned, by reason of its ownership of Notes, an aggregate of 60,191
shares of Common Stock, representing in the aggregate approximately 1.0% of the
shares of Common Stock reported to be outstanding as of July 30, 1999 in the
Company's 10-Q and as calculated in accordance with Rule 13d-3(d)(1).
As of September 3, 1999, Bridge Street may be deemed to have
beneficially owned, by reason of its ownership of Notes, an aggregate of 40,819
shares of Common Stock, representing in the aggregate approximately 0.7% of the
shares of Common Stock reported to be outstanding as of July 30, 1999 in the
Company's 10-Q and as calculated in accordance with Rule 13d-3(d)(1).
As of September 3, 1999, Empire Corp. may be deemed to have
beneficially owned, by reason of the ownership of Notes by Stone Street and
Bridge Street as described above,
<PAGE>
CUSIP NO. 756269106 PAGE 17 OF 55 PAGES
an aggregate of 101,010 shares of Common Stock, representing in the aggregate
approximately 1.6% of the shares of Common Stock reported to be outstanding as
of July 30, 1999 in the Company's 10-Q and as calculated in accordance with Rule
13d-3(d)(1).
As of September 3, 1999, Goldman Sachs may be deemed to have
beneficially owned an aggregate of 1,011,101 shares of Common Stock, including
(i) 1,010,101 shares of Common Stock which may be deemed to have been
beneficially owned by the Limited Partnerships as described above, and (ii)
1,000 shares of Common Stock held in client accounts with respect to which
Goldman Sachs or employees of Goldman Sachs have voting or investment
discretion, or both ("Managed Accounts"), representing in the aggregate
approximately 14.3% of the shares of Common Stock reported to be outstanding as
of July 30, 1999 in the Company's 10-Q and as calculated in accordance with Rule
13d-3(d)(1). Goldman Sachs disclaims beneficial ownership of (i) the shares of
Common Stock beneficially owned by the Limited Partnerships to the extent of
partnership interests in the Limited Partnerships held by persons other than
Goldman Sachs, GS Group or their affiliates and (ii) the shares of Common Stock
held in Managed Accounts.
As of September 3, 1999, GS Group may be deemed to have beneficially
owned an aggregate of 1,024,101 shares of Common Stock, including (i) 1,010,101
shares of Common Stock which may be deemed to have been beneficially owned by
the Limited Partnerships as described above,(ii) 1,000 shares of Common Stock
held in Managed Accounts, and (iii) 13,000 Director Options, representing in the
aggregate approximately 14.5% of the shares of Common Stock reported to be
outstanding as of July 30, 1999 in the Company's 10-Q, and as calculated in
accordance with Rule 13d-3(d)(1). GS Group disclaims beneficial ownership of (i)
the shares of Common Stock beneficially owned by the Limited Partnerships to the
extent of partnership interests in the Limited Partnerships held by persons
other than Goldman Sachs, GS Group or their affiliates and (ii) the shares of
Common Stock held in Managed Accounts.
None of the Filing Persons or, to the knowledge of the Filing Persons,
any of the persons listed on Schedules I, II-A-i, II-A-ii, II-A-iii or II-B
hereto, beneficially owns any shares of Common Stock other than as set forth
herein.
(b) Each Filing Person shares the power to vote or direct the vote and
to dispose or to direct the disposition of shares of Common Stock beneficially
owned by such Filing Person or has the sole power to vote or direct the vote and
to dispose or to direct the disposition of shares of Common Stock beneficially
owned by such Filing Person, as the case may be, in each case as indicated in
pages 2 through 12 above.
<PAGE>
CUSIP NO. 756269106 PAGE 18 OF 55 PAGES
(c) No transactions in the Common Stock were effected by the Filing
Persons, or, to their knowledge, any of the persons listed on Schedules I,
II-A-i, II-A-ii, II-A-iii or II-B hereto, during the period from June 27, 1999
through September 3, 1999.
(d) Except for clients of Goldman Sachs who may have the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, any shares of Common Stock held in Managed Accounts, no other
person is known by any Filing Person to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, any
shares of Common Stock beneficially owned by any Filing Person.
(e) Not applicable.
Item6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
---------------------------
Pursuant to the Letter Agreement, among other things, the Limited
Partnerships have agreed to consent to the transactions contemplated by the
Merger Agreement. Pursuant to the Merger Agreement, at the time the merger
becomes effective, all of the Notes then outstanding and unconverted shall be
canceled and each of the Limited Partnerships which then holds any Notes will be
entitled to receive the consideration provided for in the Merger Agreement. Upon
receipt of such consideration, the Limited Partnerships will have no further
rights under the Securities Purchase Agreement, the Registration Rights
Agreement and any agreements related to the Securities Purchase Agreement or
Registration Rights Agreement. The Limited Partnerships in their sole discretion
may convert all or a portion of the Notes and tender the shares of the Company
Common Stock issued upon conversion pursuant to the tender offer to be commenced
by Procter & Gamble to purchase all outstanding shares of Common Stock at a
price equal to $35.25 per share. In the event that the Limited Partnerships do
not convert all of the Notes, the Notes that are not converted shall be canceled
at the effective time of the merger and the Limited Partnerships that hold such
Notes shall be entitled to receive therefor the consideration provided in the
Merger Agreement. In the event the Limited Partnerships convert all or a portion
of the Notes, the Limited Partnerships have agreed that upon conversion they
will not be entitled to be issued any shares of the Company or receive any other
consideration or value in respect of the reset right ("Reset Rights") granted to
the Limited Partnerships pursuant to Section 9.6(j) of the Securities Purchase
Agreement and such Reset Rights shall be deemed to have been canceled and
expired. At the time the merger becomes effective and any unconverted Notes are
exchanged for merger consideration, the Limited Partnerships
<PAGE>
CUSIP NO. 756269106 PAGE 19 OF 55 PAGES
have agreed that they will not be entitled to be issued any shares of the
Company or receive any other consideration or value in respect of the Reset
Rights and such Reset Rights shall be deemed to have been canceled and expired.
The Letter Agreement shall terminate automatically and be deemed null
and void and of no further force and effect and the consent granted by the
Limited Partnerships shall be deemed revoked upon (i) the termination of the
Merger Agreement in accordance with the terms thereof and (ii) any amendment of
the Merger Agreement or any waiver by the Company of any of its rights in the
Merger Agreement unless the Limited Partnerships shall have consented in writing
to such amendment or waiver.
As of the date of this Amendment No. 5, the Limited Partnerships have
not determined whether they will convert any or all of their Notes prior to the
effective time of the Merger, or whether they will tender any or all of any
shares which they would receive upon conversion.
Item 7. Materials to be Filed as Exhibits.
1. Letter Agreement, dated as of August 26, 1999, among Recovery
Engineering, Inc., GS Capital Partners II, L.P., GS Capital Partners
II Offshore, L.P., Goldman Sachs & Co. Verwaltungs GmbH (as nominee
for GS Capital Partners II (Germany) Civil Law Partnership), Stone
Street Fund 1996, L.P., and Bridge Street Fund 1996, L.P.
2. Agreement relating to Recovery Engineering, Inc. Options, dated as of
April 29, 1999, between Robert R. Gheewalla and The Goldman Sachs
Group, Inc.
3. Power of Attorney, dated December 21, 1998, relating to Goldman, Sachs
& Co.
4. Power of Attorney, dated May 7, 1999, relating to The Goldman Sachs
Group, Inc.
5. Power of Attorney, dated December 31, 1998, relating to GS Capital
Partners II, L.P.
6. Power of Attorney, dated December 28, 1998, relating to GS Capital
Partners II Offshore, L.P.
7. Power of Attorney, dated December 21, 1998, relating to GS Capital
Partners II (Germany) Civil Law Partnership.
8. Power of Attorney, dated December 28, 1998, relating to GS Advisors,
L.P.
<PAGE>
CUSIP NO. 756269106 PAGE 20 OF 55 PAGES
9. Power of Attorney, dated December 28, 1998, relating to GS Advisors II
(Cayman), L.P.
10. Power of Attorney, dated May 26, 1999, relating to Goldman, Sachs &
Co. oHG
11. Power of Attorney, dated December 28, 1998, relating to Stone Street
Fund 1996, L.P.
12. Power of Attorney, dated December 28, 1998, relating to Bridge Street
Fund 1996, L.P.
13. Power of Attorney, dated December 28, 1998, relating to Stone Street
Empire Corp.
<PAGE>
CUSIP NO. 756269106 PAGE 21 OF 55 PAGES
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: September 9, 1999 GS CAPITAL PARTNERS II, L.P.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
GS ADVISORS, L.P.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
GS CAPITAL PARTNERS II
OFFSHORE, L.P.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
GS ADVISORS II (CAYMAN), L.P.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
GS CAPITAL PARTNERS II
(GERMANY) CIVIL LAW
PARTNERSHIP (with limitation
of liability)
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
GOLDMAN, SACHS & CO. oHG
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-Fact
GOLDMAN, SACHS & CO.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
<PAGE>
CUSIP NO. 756269106 PAGE 22 OF 55 PAGES
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
STONE STREET FUND 1996, L.P.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
BRIDGE STREET FUND 1996, L.P.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
STONE STREET EMPIRE CORP.
By: /s/ Hans L. Reich
-------------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
<PAGE>
CUSIP NO. 756269106 PAGE 23 OF 55 PAGES
EXHIBIT INDEX
Exhibit No. Exhibit
(1) Letter Agreement, dated as of August 26, 1999, among Recovery
Engineering, Inc., GS Capital Partners II, L.P., GS Capital Partners
II Offshore, L.P., Goldman Sachs & Co. Verwaltungs GmbH (as nominee
for GS Capital Partners II (Germany) Civil Law Partnership), Stone
Street Fund 1996, L.P., and Bridge Street Fund 1996, L.P.
(2) Agreement relating to Recovery Engineering, Inc. Options, dated as of
April 29, 1999, between Robert R. Gheewalla and The Goldman Sachs
Group, Inc.
(3) Power of Attorney, dated December 21, 1998, relating to Goldman, Sachs
& Co.
(4) Power of Attorney, dated May 7, 1999, relating to The Goldman Sachs
Group, Inc.
(5) Power of Attorney, dated December 31, 1998, relating to GS Capital
Partners II, L.P.
(6) Power of Attorney, dated December 28, 1998, relating to GS Capital
Partners II Offshore, L.P.
(7) Power of Attorney, dated December 21, 1998, relating to GS Capital
Partners II (Germany) Civil Law Partnership.
(8) Power of Attorney, dated December 28, 1998, relating to GS Advisors,
L.P.
(9) Power of Attorney, dated December 28, 1998, relating to GS Advisors II
(Cayman), L.P.
(10) Power of Attorney, dated May 26, 1999, relating to Goldman, Sachs &
Co. oHG
(11) Power of Attorney, dated December 28, 1998, relating to Stone Street
Fund 1996, L.P.
(12) Power of Attorney, dated December 28, 1998, relating to Bridge Street
Fund 1996, L.P.
(13) Power of Attorney, dated December 28, 1998, relating to Stone Street
Empire Corp.
<PAGE>
CUSIP NO. 756269106 PAGE 24 OF 55 PAGES
SCHEDULE I
The name of each director of The Goldman Sachs Group, Inc. is set forth
below.
The business address of each person listed below except John L.
Thornton, Sir John Browne and James A. Johnson is 85 Broad Street, New York, NY
10004. The business address of John L. Thornton is 133 Fleet Street, London EC4A
2BB, England. The business address of Sir John Browne is BP Amoco plc, Brittanic
House, 1 Finsbury Circus, London EC2M, England. The business address of James A.
Johnson is Fannie Mae, 3900 Wisconsin Avenue NW, Washington, D.C. 20016. Each
person is a citizen of the United States of America except for Sir John Browne,
who is a citizen of the United Kingdom. The present principal occupation or
employment of each of the listed persons is set forth below.
NAME PRESENT PRINCIPAL OCCUPATION
Henry M. Paulson, Chairman and Chief Executive Officer
Jr. of The Goldman Sachs Group, Inc.
Robert J. Hurst Vice Chairman of The Goldman Sachs
Group, Inc.
John A. Thain President and Co-Chief Operating
Officer of The Goldman Sachs Group,
Inc.
John L. Thornton President and Co-Chief Operating
Officer of The Goldman Sachs Group,
Inc.
Sir John Browne Group Chief Executive of BP Amoco plc
James A. Johnson Chairman of the Executive Committee of
the Board of Fannie Mae
John L. Weinberg Senior Chairman of The Goldman Sachs
Group, Inc.
<PAGE>
CUSIP NO. 756269106 PAGE 25 OF 55 PAGES
SCHEDULE II-A-i
The name, position and present principal occupation of each director
and executive officer of GS Advisors, Inc., the sole general partner of GS
Advisors, L.P., which is the sole general partner of GS Capital Partners II,
L.P., are set forth below.
The business address for all the executive officers and directors
listed below except Henry Cornell and Barry S. Volpert is 85 Broad Street, New
York, New York 10004. The business address of Henry Cornell is 3 Garden Road,
Hong Kong. The business address of Barry S. Volpert is 133 Fleet Street, London
EC4A 2BB, England.
All executive officers and directors listed below are United States
citizens.
NAME POSITION PRESENT PRINCIPAL
OCCUPATION
Richard A. Director/President Managing Director
Friedman of Goldman, Sachs
& Co.
Terence M. Director/Vice Managing Director
O'Toole President of Goldman, Sachs
& Co.
Elizabeth S. Treasurer Managing Director
Fascitelli of Goldman, Sachs
& Co.
Joseph H. Director/Vice Managing Director
Gleberman President of Goldman, Sachs
& Co.
Henry Cornell Vice President Managing Director
of Goldman Sachs
(Asia) L.L.C.
Barry S. Director/Vice Managing Director
Volpert President of Goldman Sachs
International
Eve M. Gerriets Vice Vice President of
President/Secretary Goldman, Sachs &
Co.
David J. Assistant Secretary Managing Director
Greenwald of Goldman, Sachs
& Co.
Esta E. Stecher Assistant Secretary Managing Director
of Goldman, Sachs
& Co.
<PAGE>
CUSIP NO. 756269106 PAGE 26 OF 55 PAGES
PRESENT PRINCIPAL
NAME POSITION OCCUPATION
James B. McHugh Assistant Secretary Vice President of
Goldman, Sachs &
Co.
C. Douglas Fuge Assistant Treasurer Managing Director
of Goldman, Sachs
& Co.
Dan H. Jester Assistant Treasurer Managing Director
of Goldman, Sachs
& Co.
David A. Viniar Assistant Treasurer Managing Director
of Goldman, Sachs
& Co.
Katherine B. Vice President Vice President of
Enquist Goldman, Sachs &
Co.
<PAGE>
CUSIP NO. 756269106 PAGE 27 OF 55 PAGES
SCHEDULE II-A-ii
The name, position and present principal occupation of each director
and executive officer of GS Advisors II, Inc., the sole general partner of GS
Advisors II (Cayman), L.P., which is the sole general partner of GS Capital
Partners II Offshore, L.P., are set forth below.
The business address for all the executive officers and directors
listed below except Henry Cornell and Barry S. Volpert is 85 Broad Street, New
York, New York 10004. The business address of Henry Cornell is 3 Garden Road,
Hong Kong. The business address of Barry S. Volpert is 133 Fleet Street, London
EC4A 2BB, England.
All executive officers and directors listed below are United States
citizens.
PRESENT PRINCIPAL
NAME POSITION OCCUPATION
Richard A. Director/President Managing Director
Friedman of Goldman, Sachs
& Co.
Terence M. Director/Vice Managing Director
O'Toole President of Goldman, Sachs
& Co.
Elizabeth S. Treasurer Managing Director
Fascitelli of Goldman, Sachs
& Co.
Joseph H. Director/Vice Managing Director
Gleberman President of Goldman, Sachs
& Co.
Henry Cornell Vice President Managing Director
of Goldman Sachs
(Asia) L.L.C.
Barry S. Volpert Director/Vice Managing Director
President of Goldman Sachs
International
Eve M. Gerriets Vice Vice President of
President/Secretary Goldman, Sachs &
Co.
David J. Assistant Secretary Managing Director
Greenwald of Goldman, Sachs
& Co.
<PAGE>
CUSIP NO. 756269106 PAGE 28 OF 55 PAGES
PRESENT PRINCIPAL
NAME POSITION OCCUPATION
Esta E. Stecher Assistant Secretary Managing Director
of Goldman, Sachs
& Co.
James B. McHugh Assistant Secretary Vice President of
Goldman, Sachs &
Co.
C. Douglas Fuge Assistant Treasurer Managing Director
of Goldman, Sachs
& Co.
Dan H. Jester Assistant Treasurer Managing Director
of Goldman, Sachs
& Co.
David A. Viniar Assistant Treasurer Managing Director
of Goldman, Sachs
& Co.
Katherine B. Vice President Vice President of
Enquist Goldman, Sachs &
Co.
<PAGE>
CUSIP NO. 756269106 PAGE 29 OF 55 PAGES
SCHEDULE II-A-iii
The name, position and present principal occupation of each director
and executive officer of Stone Street Empire Corp., the sole general partner of
Stone Street Fund 1996, L.P. and the managing general partner of Bridge Street
Fund 1996, L.P., are set forth below.
The business address for each of the executive officers and directors
listed below is 85 Broad Street, New York, New York 10004.
All executive officers and directors listed below are United States
citizens.
PRESENT PRINCIPAL
NAME POSITION OCCUPATION
Richard A. Director/Vice Managing Director
Friedman President of Goldman, Sachs
& Co.
Terence M. Director/Vice Managing Director
O'Toole President of Goldman, Sachs
& Co.
Joseph H. Director/Vice Managing Director
Gleberman President of Goldman, Sachs
& Co.
Sanjeev K. Director/Vice Managing Director
Mehra President/Treasurer of Goldman, Sachs
& Co.
Peter G. Sachs Director/Vice Senior Director of
President The Goldman Sachs
Group, Inc.
Peter M. Director/Chairman/Pr Advisory Director
Sacerdote esident of Goldman, Sachs
& Co.
David J. Vice President Managing Director
Greenwald of Goldman, Sachs
& Co.
Esta E. Stecher Vice President Managing Director
of Goldman, Sachs
& Co.
C. Douglas Fuge Assistant Treasurer Managing Director
of Goldman, Sachs
& Co.
Eve M. Gerriets Vice Vice President of
President/Secretary Goldman, Sachs &
Co.
<PAGE>
CUSIP NO. 756269106 PAGE 30 OF 55 PAGES
PRESENT PRINCIPAL
NAME POSITION OCCUPATION
Katherine B. Vice President Vice President of
Enquist Goldman, Sachs &
Co.
Richard J. Vice President Vice President of
Stingi Goldman, Sachs &
Co.
<PAGE>
CUSIP NO. 756269106 PAGE 31 OF 55 PAGES
SCHEDULE II-B
The name, position and present principal occupation of each executive
officer and director of Goldman, Sachs & Co. Finanz GmbH which is the sole
managing general partner of Goldman, Sachs & Co. oHG are set forth below.
The business address for each of the executive officers and directors
listed below is MesseTurm, 60308 Frankfurt am Main, Germany. Robert H. Jolliffe
has an additional business address of 133 Fleet Street, London EC4A 2BB,
England.
Of the directors and executive officers listed below, Robert H.
Jolliffe is a citizen of Great Britain, Paul M. Achleitner and Rudolf W. Ferscha
are citizens of Austria, and Stefan J. Jentzsch is a citizen of Germany.
PRESENT PRINCIPAL
NAME POSITION OCCUPATION
Paul M. Managing Director Managing Director of
Achleitner Goldman, Sachs & Co.
oHG
Stefan J. Managing Director Managing Director of
Jentzsch Goldman, Sachs & Co.
oHG
Robert H. Managing Director Managing Director of
Jolliffe Goldman, Sachs & Co.
oHG
Rudolf W. Ferscha Managing Director Executive Director
of Goldman, Sachs &
Co. oHG
CUSIP NO. 756269106 PAGE 32 OF 55 PAGES
Exhibit 1
The Procter & Gamble Company
One Procter & Gamble Plaza
Cincinnati, OH 45202
Attention: Gretchen W. Price
Brian F. Sullivan
Chief Executive Officer
Recovery Engineering, Inc.
9300 North 75th Street
Minneapolis, MN 55428
Dear Ms. Price and Mr. Sullivan:
Reference is hereby made to (i) that certain Securities Purchase
Agreement, dated as of July 19, 1996, as amended by Amendment No. 1, dated as of
March 31, 1997, and as further amended by the letter agreement, dated April 24,
1997 (as amended, the "Securities Purchase Agreement"), between Recovery
Engineering, Inc. (the "Company") and GS Capital Partners II, L.P., GS Capital
Partners II Offshore, L.P., Goldman, Sachs & Co. Verwaltungs GmbH, Stone Street
Fund 1996, L.P. and Bridge Street Fund 1996, L.P. (collectively, the "GS
Entities"), and (ii) the Agreement and Plan of Merger, dated as of August 26,
1999, by and among the Company, The Procter and Gamble Company ("Procter &
Gamble") and Tenzing, Inc. (the "Merger Agreement"). Capitalized terms used but
not defined herein shall have the respective meanings given to them in the
Merger Agreement.
The GS Entities hereby agree as follows:
1. For purposes of Section 6.1(a) of the Securities Purchase Agreement, they
consent to the Transactions contemplated by the Merger Agreement;
2. Pursuant to the Merger Agreement, at the Effective Time all of the Notes
(as defined in the Securities Purchase Agreement) then outstanding and
unconverted shall be canceled and each GS Entity which then holds any Notes
will be entitled to receive therefor the consideration provided in the
Merger Agreement;
3. Upon receipt of such consideration, the GS Entities will have no further
rights under the Securities Purchase Agreement, the Registration Rights
Agreement, dated as of July 19, 1996, between the Company and the GS
Entities and any agreement related to the Securities Purchase Agreement or
the Registration Rights Agreement; and
4. The GS Entities in their sole discretion may convert all or a portion of
the Notes and tender the shares of
<PAGE>
CUSIP NO. 756269106 PAGE 33 OF 55 PAGES
Company common stock issued upon conversion pursuant to the Offer. In the
event that the GS Entities do not convert all of the Notes, the Notes that
are not converted shall be cancelled at the Effective Time and the GS
Entities that hold such Notes shall be entitled to receive therefor the
consideration provided in the Merger Agreement, as contemplated by
paragraph (2) above. In the event that the GS Entities convert all or a
portion of the Notes after the date hereof and prior to termination of the
Merger Agreement, the GS Entities acknowledge that upon conversion they
will not be entitled to be issued any shares of Company common stock or
receive any other consideration or value in respect of the reset rights
("Reset Rights") granted to the GS Entities pursuant to Section 9.6(j) of
the Securities Purchase Agreement and that such Reset Rights shall be
deemed to have been cancelled and expired. In the event that the GS
Entities do not convert all of the Notes, the GS Entities acknowledge that
upon cancellation of the Notes at the Effective Time the GS Entities will
not be entitled to receive any consideration or value in respect of the
Reset Rights and that such Reset Rights shall be deemed to have been
cancelled and expired.
This letter agreement does not constitute an agreement by any of the GS
Entities (i) to tender pursuant to the Offer any shares of Company common stock
issued upon conversion of all or any portion of the Notes, (ii) to vote any
shares of Company common stock held by such GS Entities in favor of the Merger
or against any other proposal that may be submitted to the stockholders of the
Company, (iii) to refrain from selling, transferring, pledging, assigning,
hypothecating or otherwise disposing of all or any portion of the Notes or any
shares of Company common stock issued upon conversion of all or any portion of
the Notes or (iv) to refrain from granting their consent with respect to any
other consolidation, merger, business combination transaction or other
transaction involving the Company for purposes of Section 6.1(a) of the
Securities Purchase Agreement.
This letter agreement shall terminate automatically and be deemed null
and void and of no further force and effect and the consent granted pursuant to
paragraph (1) above shall be deemed revoked upon (i) the termination of the
Merger Agreement in accordance with the terms thereof and (ii) any amendment of
the Merger Agreement or any waiver by the Company of any of its rights in the
Merger Agreement unless the GS Entities shall have consented in writing to such
amendment or waiver.
* * * * *
<PAGE>
CUSIP NO. 756269106 PAGE 34 OF 55 PAGES
IN WITNESS WHEREOF, the Company, the GS Entities have caused this
Amendment to be executed and delivered by their respective officers thereunto
duly authorized.
RECOVERY ENGINEERING, INC.
By: /s/ Brian F. Sullivan
Name: Brian F. Sullivan
Title: Chief Executive Officer
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P., its general
partner
By: GS Advisors, Inc., its general
partner
By: /s/ Terence M. O'Toole
Name: Terence M. O'Toole
Title: Vice President
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P.,
its general partner
By: GS Advisors II, Inc., its
general partner
By: /s/ Terence M. O'Toole
Name: Terence M. O'Toole
Title: Vice President
GOLDMAN, SACHS & CO. VERWALTUNGS GmbH
By: /s/ Terence M. O'Toole
Name: Terence M. O'Toole
Title: Vice President
and
By: /s/ John Bowman
Name: John Bowman
Title: Attorney-in-fact
<PAGE>
CUSIP NO. 756269106 PAGE 35 OF 55 PAGES
STONE STREET FUND 1996, L.P.
By: Stone Street Empire Corp., its
general partner
By: /s/ Terence M. O'Toole
Name: Terence M. O'Toole
Title: Vice President
BRIDGE STREET FUND 1996, L.P.
By: Stone Street Empire Corp., its
managing general partner
By: /s/ Terence M. O'Toole
Name: Terence M. O'Toole
Title: Vice President
CUSIP NO. 756269106 PAGE 36 OF 55 PAGES
Exhibit 2
AGREEMENT RELATING TO
RECOVERY ENGINEERING, INC. OPTIONS
AGREEMENT, dated as of April 29, 1999, by and between Robert R.
Gheewalla (the "Grantee") and The Goldman Sachs Group, Inc. ("Goldman Sachs").
WHEREAS, the Grantee is serving as a director of Recovery Engineering,
Inc., (the "Company") at the request of GS Capital Partners II, L.P. (the
"Fund"), of which a subsidiary of Goldman Sachs is the general partner.
WHEREAS, it is the policy of Goldman Sachs that if, at the request of
the Fund, any employee of Goldman Sachs or any of its affiliates serves as a
director of a company in which the Fund has an investment and such company
grants options to purchase stock of such company to such employee, then such
employee holds such options for the benefit of Goldman Sachs;
WHEREAS, under the 1993 Director Stock Option Plan (as amended, the
"Current Plan") and pursuant to the Director's Nonqualified Stock Option
Agreements (the "Initial Option Agreements"), dated as of February 3, 1998 and
April 29, 1999, between the Company and the Grantee, the Grantee was granted
options (the "Initial Options") to purchase up to 4,000 shares of common stock,
par value $.01 per share (the "Stock"), of the Company at an exercise price of
$24.01 per share and 4,000 shares of Stock of the Company at an exercise price
of $10.36 per share;
WHEREAS, the Initial Option Agreements provide that the Initial Options
are not transferable except under certain specified circumstances;
WHEREAS, the Grantee may from time to time in his capacity as a
director of the Company be granted additional options to purchase Stock
(individually and collectively, an "Additional Option") pursuant to an option
agreement (individually and collectively, an "Additional Option Agreement")
under the Current Plan or under another stock option plan of the Company
(individually and collectively, an "Additional Plan"; the Additional Plan and
the Current Plan are referred to individually and collectively as the "Plan";
the Additional Option and the Initial Options are referred to individually and
collectively as an "Option"; the Additional Option Agreement and the Initial
Option Agreements are referred to individually and collectively as an "Option
Agreement"); and
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CUSIP NO. 756269106 PAGE 37 OF 55 PAGES
WHEREAS, in accordance with the policy of Goldman Sachs, the Grantee is
required to hold the Initial Options and any Additional Option which the Grantee
may receive from time to time as nominee for Goldman Sachs.
NOW THEREFORE, in consideration of the terms and conditions set forth
herein and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings given to them in the Plan.
2. General. The Grantee hereby agree that: (i) the Grantee shall hold
each Option, each share of Stock issuable upon exercise of any Option, and the
proceeds of any sale of any such shares of Stock in trust for the benefit of
Goldman Sachs; (ii) the Grantee shall not (x) exercise the Option, in whole or
in part, (y) Transfer (as defined in Section 2.6) any shares of Stock issuable
upon exercise of the Option, or (z) vote any shares of Stock, except, in each
case, as Goldman Sachs may in its sole discretion direct from time to time; and
(iii) the Grantee shall take all such actions and exercise all such rights and
privileges with respect to any Option or such shares of Stock as Goldman Sachs
may in its sole discretion direct from time to time, provided that the Grantee
shall not be required to take any action or exercise any such rights or
privileges which the Grantee believes, in good faith, would violate any
applicable law or the Grantee's fiduciary duties to the Company. The Grantee
hereby agrees that Goldman Sachs shall be entitled to all such rights and
privileges with respect to any Option or such shares of Stock as if Goldman
Sachs had originally been the grantee under each Option Agreement. Without
limiting the generality of the foregoing, the parties hereto agree as follows:
a. Exercise of Options. Subject to the exercise schedule set forth in
the applicable Option Agreement, at any time and from time to time that Goldman
Sachs determines to exercise any Option, Goldman Sachs shall provide to the
Grantee written instructions (the "Exercise Instructions") which shall: (i) set
forth the number of shares of Stock in respect of which the Option shall be
exercised (the "Purchased Stock"); (ii) set forth the date on which the
Grantee shall exercise the Option; and (iii) identify the Option to which the
Exercise Instructions relate (such identification to be made by the date of the
Option Agreement or otherwise). The Exercise Instructions may also include such
other instructions as Goldman Sachs may in its sole discretion deem appropriate,
including, without limitation, instructions to the Grantee to: (x) provide to
the Company, to the extent permitted by the applicable Plan
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CUSIP NO. 756269106 PAGE 38 OF 55 PAGES
and any committee of the Board of Directors of the Company which administers the
Plan (the "Committee"), irrevocable instructions for a broker to promptly pay to
the Company in full the Option price for the Purchased Stock; or (y) Transfer
(as defined below) the shares of Purchased Stock to, or instruct the Company to
issue such shares of Purchased Stock in the name of, Goldman Sachs or Goldman
Sachs' designee. Upon receipt of the Exercise Instructions, the Grantee shall
exercise the Option referred to therein in accordance with the Exercise
Instructions by delivering written notice to the Company in accordance with the
Exercise Instructions, the applicable Option Agreement and the Plan. Except as
provided in this Section 2, the Grantee shall not exercise any Option.
b. Exercise Price and Taxes.
i. Except to the extent Goldman Sachs instructs the Grantee in
accordance with clause (x) of Section 1.1 hereof, Goldman Sachs shall, no later
than the date of exercise specified in the Exercise Instructions, deliver or
cause to be delivered to the Company (on behalf of the Grantee) or deliver or
cause to be delivered to the Grantee (who shall in turn deliver or cause to be
delivered to the Company) cash in an amount equal to the sum of (i) the
aggregate purchase price for the Purchased Stock, and (ii) the amount of any
taxes or other amounts which is imposed by any governmental entity and which the
Grantee is required to satisfy in connection with such exercise. Such payment
may be made by any method permitted pursuant to the Plan or such other method as
the Committee may approve.
ii. Goldman Sachs shall promptly deliver to the Grantee or otherwise
pay on behalf of the Grantee, any stock transfer or similar taxes payable by the
Grantee in connection with any Transfer requested by Goldman Sachs.
c. Tax Returns.
ii. The Grantee will request that the Company (if the Company
determines that it is permissible under applicable law) issue a Form 1099 to
Goldman Sachs rather than to the Grantee in connection with any exercise of any
Option.
ii. If the Company issues a Form 1099 to the Grantee in connection with
any exercise of any Option in any year, the Grantee shall promptly notify
Goldman Sachs of his receipt of a Form 1099 and, unless the Grantee and Goldman
Sachs otherwise agree in writing, the Grantee shall (i) issue a Form 1099 to
Goldman Sachs to reflect the amount reported in the Form 1099 issued by the
Company, and (ii) attach a statement to his federal income tax return to explain
that the amounts reported in the Company's Form 1099 were received by the
Grantee solely as an agent for Goldman Sachs and are not gross income of the
Grantee. Goldman Sachs shall reimburse the Grantee for up to $1,000 of the
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CUSIP NO. 756269106 PAGE 39 OF 55 PAGES
reasonable costs incurred by the Grantee for tax return preparation for such
year.
iii. If in any year the Grantee, upon the written instructions of
Goldman Sachs, Transfers any Option or any shares of Stock issued upon the
exercise of any Option in a taxable transaction, Goldman Sachs shall reimburse
the Grantee for up to $1,000 of the reasonable costs incurred by the Grantee for
tax return preparation for such year.
iv. In the event the Grantee is requested to pay an amount of
additional income tax as a result of the exercise of any Option or any Transfer
requested by Goldman Sachs (the "Incremental Taxes"), the Grantee shall promptly
notify Goldman Sachs and cause his tax accountant or other tax preparer to
prepare a certificate (the "Tax Certificate") setting forth (i) the amount of
Incremental Taxes and (ii) the determination thereof in reasonable detail. The
Tax Certificate shall be provided within 30 days of the receipt by the Grantee
of correspondence from any tax authority with respect to an amount that could
give rise to an Incremental Tax. Goldman Sachs shall have 20 days to review the
Tax Certificate and (A) shall undertake to arrange for the Grantee's defense in
any controversy arising with respect to any Incremental Tax or (B) if the
Grantee has fulfilled all of his obligations hereunder, shall pay to the Grantee
the amount of any Incremental Tax finally determined in accordance with Section
2.3(e) or (f) below. Grantee will cooperate with Goldman Sachs and with any tax
representative selected by Goldman Sachs, which representative shall be
reasonably acceptable to the Grantee, and such cooperation shall include
complying with reasonable requests to furnish information or execute documents
necessary to defend the Grantee in the course of the dispute or to effect a
settlement of the dispute. In the event Goldman Sachs chooses to exercise
alternative (A) above, the costs of defense shall be borne by Goldman Sachs.
Goldman Sachs and the Grantee shall resolve any dispute between them in good
faith.
v. If Goldman Sachs chooses to pay the Incremental Taxes under Section
2.3(d)(B) hereof, Goldman Sachs shall, within five days after the end of the
20-day review period if there is no dispute or, if there is a dispute, within
five days after the dispute is resolved, pay to the Grantee (i) the amount of
any Incremental Taxes as reflected on the Tax Certificate if there is no dispute
or as the parties may agree if there is a dispute resolved by the parties, and
(ii) an amount necessary to compensate the Grantee for the additional federal,
state or local income or payroll taxes, if any, imposed on the Grantee as a
consequence of Goldman Sachs' payment of the Incremental Taxes and the payment
of any amounts under this subclause (ii) to the Grantee (the "Gross-up Amount").
The Gross-up Amount shall be computed by Goldman Sachs using the highest
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CUSIP NO. 756269106 PAGE 40 OF 55 PAGES
combined effective rate of federal, state and local income tax applicable to a
resident of The City of New York in the taxable year in which Goldman Sachs pays
the Incremental Tax to the Grantee.
vi. If Goldman Sachs chooses to defend the Grantee with respect to an
Incremental Tax pursuant to Section 2.3(d)(A) hereof, and (i) the Grantee is
assessed an income tax after Goldman Sachs has exhausted all administrative or
other legal remedies that, in its sole discretion, Goldman Sachs chooses to
pursue, or (ii) a settlement is reached, Goldman Sachs shall pay any additional
income tax with respect to such controversy for which the Grantee ultimately is
liable, including a gross-up amount, such amounts to be determined and paid in
accordance with the procedures for determining an Incremental Tax and the
Gross-up Amount in Section 2.3(e) hereof.
d. Notices; Information. The grantee shall promptly provide to Goldman
Sachs a copy of (i) all written notices delivered to the Grantee as a
participant in any Plan or as a shareholder of the Company, and (ii) any
documents, reports or other materials provided to the Grantee as a participant
in any Plan or as a shareholder of the Company, including any quarterly and
annual reports to shareholders and any proxy statements. Upon request of Goldman
Sachs, the Grantee shall obtain any information, reports or other materials
available to the Grantee as a participant in any Plan or as a shareholder of the
Company.
e. Voting. The Grantee shall not exercise any voting rights in respect
of any shares of Stock issued to the Grantee upon exercise of any Option, except
in accordance with the written instructions of Goldman Sachs. The Grantee hereby
agrees to exercise such voting rights in accordance with the written
instructions of Goldman Sachs.
f. Transfer. The Grantee shall not sell, transfer, assign, exchange,
pledge, encumber or otherwise dispose of any Option or any shares of Stock
issued to the Grantee upon exercise of any Option, or grant any option to
purchase such Option or shares of Stock or grant any legal or beneficial
interest therein (each, a "Transfer"), except in accordance with the written
instructions of Goldman Sachs or by will or the laws of descent or distribution.
The Grantee hereby agrees to Transfer any Option or shares of Stock in
accordance with the written instructions of Goldman Sachs.
3. Termination of Employment or Directorship; Termination of
Options.
a. No Right to Continued Employment or Directorship. Nothing in this
Agreement shall be interpreted or construed to confer upon the Grantee any
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CUSIP NO. 756269106 PAGE 41 OF 55 PAGES
right with respect to continuance of employment by Goldman Sachs or its
affiliates or of serving as a director of the Company, nor shall this Agreement
interfere in any way with the right of Goldman Sachs or its affiliates to
terminate the Grantee's employment or directorship at any time.
b. Effect of Termination of Employment or Directorship. If the
employment of the Grantee by Goldman Sachs or its affiliates or the directorship
of the Grantee is terminated for any reason, including, without limitation,
death, disability, retirement or cause, this Agreement shall continue in full
force and effect and shall be binding upon the parties hereto and their
respective successors, assigns, legal and personal representatives, heirs and
legatees.
c. Termination of Options. The Grantee shall not have any liability to
Goldman Sachs, or otherwise be responsible for, the forfeiture, cancellation,
lapse or termination of any Option upon the termination for whatever reason of
the Grantee's position as a director of the Company or upon the expiration of
the term of such Option if Goldman Sachs failed to provide Exercise Instructions
to the Grantee or to otherwise comply with Section 2 in a timely manner.
4. Further Assurances. Each party hereto shall do and perform or cause
to be done and performed all further acts and things and shall execute and
deliver all other agreements, certificates, instruments, and documents as any
other party hereto reasonably may request in order carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
5. Governing Law. This Agreement and the rights and obligations of the
parties hereto shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York, without giving effect to the principles
of conflicts of law thereof. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and of the United States of America, in each case,
located in the Borough of Manhattan for any action or proceeding in any court or
before any governmental authority ("Litigation") arising out of or relating to
this Agreement and the transactions contemplated hereby (and agrees not to
commence any Litigation relating thereto except in such courts), and further
agrees that service of any process, summons, notice or document by U.S.
registered mail to its respective address in accordance with this Agreement
shall be effective service of process for any Litigation brought against it in
any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Litigation
arising out of this Agreement or the transactions contemplated hereby in the
courts of the State of New York
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CUSIP NO. 756269106 PAGE 42 OF 55 PAGES
or the United States of America located in the Borough of Manhattan, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such Litigation brought in any such court has been
brought in an inconvenient forum.
6. Specific Performance. The parties hereto agree that money damages or
other remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that in addition to
all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being required.
7. Notice. All notices and other communications hereunder shall be in
writing and, unless otherwise provided herein, shall be deemed to have been
given when received by the party to whom such notice is to be given at its
address set forth below, or such other address for the party as shall be
specified by notice given pursuant hereto:
(i) If to Goldman Sachs to
The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Attention: Eve M. Gerriets
(ii) If to the Grantee to
Robert R. Gheewalla
Goldman, Sachs & Co.
19th Floor
85 Broad Street
New York, NY 10004
8. Binding Effect; Assignment. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
legal and personal representatives, heirs, legatees, successors, and assigns.
Neither this Agreement nor any of the rights hereunder may be assigned by any of
the parties hereto without the consent of the other party, except that Goldman
Sachs may assign all or part of its rights under this Agreement without the
consent of the Grantee.
9. Amendment and Modification. This Agreement may be amended, modified,
supplemented or waived only by written agreement of the party against whom
enforcement of such amendment, modification, supplement or waiver is sought.
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CUSIP NO. 756269106 PAGE 43 OF 55 PAGES
10. Headings; References; Execution in Counterparts. The headings and
captions contained herein are for convenience only and shall not control or
affect the meaning or construction of any provision hereof. All article,
section, schedule, exhibit and paragraph references are to this Agreement,
unless otherwise expressly provided. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
11. Interpretation. The use of the word "including" in this Agreement
shall be by way of example rather than by limitation. There shall be included
within the term "Option" any and all options, securities or other rights of any
kind whatsoever which may be issued in respect of, or in exchange for, any
Option pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise. There shall be included within the
term "Stock" any and all securities, option or other rights of any kind
whatsoever which may be issued in respect of, or in exchange for, any shares of
Stock pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise.
12. Entire Agreement. The Agreement constitutes the entire agreement,
and supersedes all prior agreements and understandings, oral and written,
between the parties hereto with respect to the subject matter hereof.
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CUSIP NO. 756269106 PAGE 44 OF 55 PAGES
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Richard A. Friedman
Richard A. Friedman
Vice President
GRANTEE
By: /s/ Robert R. Gheewalla
Robert R. Gheewalla
Recovery Engineering, Inc. acknowledges the foregoing agreement between
The Goldman Sachs Group, Inc., a Delaware Corporation, and Robert R. Gheewalla
and agrees to be bound by Sections 2(i) and 2.3(a) of such agreement, except as
the undersigned may otherwise be required to do by law or judicial process.
RECOVERY ENGINEERING, INC.
By: /s/ Peter Saari
Name: Peter Saari
Title: Corporate Counsel
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CUSIP NO. 756269106 PAGE 45 OF 55 PAGES
Exhibit 3
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in- fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 21, 1998.
GOLDMAN, SACHS & CO.
By: The Goldman, Sachs & Co. L.L.C.
By:/s/ Robert J. Katz
Name: Robert J. Katz
Title: Executive Vice President
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CUSIP NO. 756269106 PAGE 46 OF 55 PAGES
Exhibit 4
POWER OF ATTORNEY
This power of attorney will expire on May 31, 2001.
KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN SACHS GROUP, INC.
(the "Company") does hereby make, constitute and appoint each of Hans L. Reich
and Roger S. Begelman, acting individually, its true and lawful attorney, to
execute and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of May 7, 1999.
THE GOLDMAN SACHS GROUP, INC.
By:/s/ Robert J. Katz
Name: Robert J. Katz
Title: Executive Vice President and General Counsel
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CUSIP NO. 756269106 PAGE 47 OF 55 PAGES
Exhibit 5
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS II, L.P.
(the "Company") does hereby make, constitute and appoint each of Hans L. Reich
and Roger S. Begelman, acting individually, its true and lawful attorney, to
execute and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 31, 1998.
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P.
By: GS Advisors, Inc.
By:/s/ Kaca B. Enquist
Name: Kaca B. Enquist
Title: Vice President
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CUSIP NO. 756269106 PAGE 48 OF 55 PAGES
Exhibit 6
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS II
OFFSHORE, L.P. (the "Company") does hereby make, constitute and appoint each of
Hans L. Reich and Roger S. Begelman, acting individually, its true and lawful
attorney, to execute and deliver in its name and on its behalf whether the
Company is acting individually or as representative of others, any and all
filings required to be made by the Company under the Securities Exchange Act of
1934, as amended, giving and granting unto each said attorney-in-fact power and
authority to act in the premises as fully and to all intents and purposes as the
Company might or could do if personally present by one of its authorized
signatories, hereby ratifying and confirming all that said attorney-in-fact
shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 28, 1998.
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (CAYMAN), L.P.
By: GS Advisors II, Inc.
By:/s/ Kaca B. Enquist
Name: Kaca B. Enquist
Title: Vice President
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CUSIP NO. 756269106 PAGE 49 OF 55 PAGES
Exhibit 7
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS II
(GERMANY) CIVIL LAW PARTNERSHIP (the "Company") does hereby make, constitute and
appoint each of Hans L. Reich and Roger S. Begelman, acting individually, its
true and lawful attorney, to execute and deliver in its name and on its behalf
whether the Company is acting individually or as representative of others, any
and all filings required to be made by the Company under the Securities Exchange
Act of 1934, as amended, giving and granting unto each said attorney-in-fact
power and authority to act in the premises as fully and to all intents and
purposes as the Company might or could do if personally present by one of its
authorized signatories, hereby ratifying and confirming all that said
attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 21, 1998.
GS CAPITAL PARTNERS II (GERMANY) CIVIL LAW PARTNERSHIP
By: The Goldman Sachs Group, L.P.
By: The Goldman Sachs Corporation
By: /s/ Robert J. Katz
Name: Robert J. Katz
Title: Executive Vice President
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Exhibit 8
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS ADVISORS, L.P. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 28, 1998.
GS ADVISORS, L.P.
By: GS Advisors, Inc.
By:/s/ Kaca B. Enquist
Name: Kaca B. Enquist
Title: Vice President
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CUSIP NO. 756269106 PAGE 51 OF 55 PAGES
Exhibit 9
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS ADVISORS II (CAYMAN), L.P.
(the "Company") does hereby make, constitute and appoint each of Hans L. Reich
and Roger S. Begelman, acting individually, its true and lawful attorney, to
execute and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 28, 1998.
GS ADVISORS II (CAYMAN), L.P.
By: GS Advisors II, Inc.
By:/s/ Kaca B. Enquist
Name: Kaca B. Enquist
Title: Vice President
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Exhibit 10
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2001.
KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. oHG, (the
"Company") does hereby make, constitute and appoint each of Hans-Linhard Reich
and Roger S. Begelman, acting individually, its true and lawful attorney, to
execute and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of May 26, 1999.
GOLDMAN, SACHS & CO. oHG
By: /s/ Andreas Kornlein By:/s/ Sabine Mock
Name: Andreas Kornlein Name: Sabine Mock
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Exhibit 11
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that STONE STREET FUND 1996, L.P.
(the "Company") does hereby make, constitute and appoint each of Hans L. Reich
and Roger S. Begelman, acting individually, its true and lawful attorney, to
execute and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 28, 1998.
STONE STREET FUND 1996, L.P.
By: Stone Street Empire Corp.
By:/s/ Kaca B. Enquist
Name: Kaca B. Enquist
Title: Vice President
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CUSIP NO. 756269106 PAGE 54 OF 55 PAGES
Exhibit 12
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that BRIDGE STREET FUND 1996, L.P.
(the "Company") does hereby make, constitute and appoint each of Hans L. Reich
and Roger S. Begelman, acting individually, its true and lawful attorney, to
execute and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 28, 1998.
BRIDGE STREET FUND 1996, L.P.
By: Stone Street Empire Corp.
By:/s/ Kaca B. Enquist
Name: Kaca B. Enquist
Title: Vice President
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CUSIP NO. 756269106 PAGE 55 OF 55 PAGES
Exhibit 13
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that STONE STREET EMPIRE CORP. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in- fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents
as of December 28, 1998.
STONE STREET EMPIRE CORP.
By:/s/ Kaca B. Enquist
Name: Kaca B. Enquist
Title: Vice President
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