<PAGE> 1
REGISTRATION NO. 333-75321
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE GOLDMAN SACHS GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<CAPTION>
DELAWARE 6211 13-4019460
<S> <C> <C>
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
85 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 902-1000
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
ROBERT J. KATZ
GREGORY K. PALM
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 902-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
RICARDO A. MESTRES, JR.
JOHN P. MEAD
DAVID P. HARMS
ROBERT W. REEDER III
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO
THE PUBLIC: As soon as practicable after the
effective date of this Registration Statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [X] Registration No. 333-75321.
If the delivery of the prospectus is expected to be made pursuant to
Rule 434 under the Securities Act, check the following box. [ ]
<PAGE> 2
EXPLANATORY NOTE
This Post-Effective Amendment No. 3 to the Registration Statement on Form S-1
(File No. 333-75321) of The Goldman Sachs Group, Inc. (the "Registration
Statement") is being filed pursuant to Rule 462(d) under the Securities Act of
1933, as amended, for the sole purpose of filing additional exhibits to the
Registration Statement and, accordingly, shall become effective immediately upon
filing with the Securities and Exchange Commission. The contents of the
Registration Statement are hereby incorporated herein by reference.
<PAGE> 3
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
1.1 Form of Distribution Agreement.***
1.2 Terms Agreement, dated September 22, 1999, relating to the
7.35% Notes due 2009.***
2.1 Plan of Incorporation.**
2.2 Agreement and Plan of Merger of The Goldman Sachs Corporation
into The Goldman Sachs Group, Inc.*
2.3 Agreement and Plan of Merger of The Goldman Sachs Group, L.P.
into The Goldman Sachs Group, Inc.*
3.1 Certificate of Incorporation of The Goldman Sachs Group,
Inc.**
3.2 Amended and Restated Certificate of Incorporation of The
Goldman Sachs Group, Inc.*
3.3 Amended and Restated By-Laws of The Goldman Sachs Group, Inc.*
4.1 Form of Indenture between The Goldman Sachs Group, Inc. and
The Bank of New York.***
4.2 Form of debt securities of The Goldman Sachs Group, Inc.
(included in Exhibit 4.1 ).***
4.3 Form of Floating Rate Medium-Term Note.***
4.4 Form of Fixed Rate Medium-Term Note.***
4.5 Form of Mandatory Exchangeable Note.***
4.6 Form of Exchangeable Note.***
4.7 Specimen of 7.35% Note due 2009.***
4.8 Specimen of Index-Linked Note due 2002 (Linked to the
Nikkei 225).
5.1 Opinion of Gregory K. Palm, Esq., a General Counsel of The
Goldman Sachs Group, Inc.***
8.1 Opinion of Sullivan & Cromwell, United States tax counsel to
The Goldman Sachs Group, Inc., re tax matters.***
8.2 Opinion of Sullivan & Cromwell, United States tax counsel to
The Goldman Sachs Group, Inc., re tax matters relating to
2.00% Exchangeable Notes due 2006 (Exchangeable for Common
Stock of Wells Fargo & Company).***
8.3 Opinion of Sullivan & Cromwell, United States tax counsel to
The Goldman Sachs Group, Inc., re tax matters relating to
Index-Linked Note due 2002 (Linked to the Nikkei 225).
10.1 Lease, dated June 11, 1985, between Metropolitan Life
Insurance Company and Goldman, Sachs & Co.**
10.2 Lease, dated April 5,1994, between The Chase Manhattan Bank
(National Association) and The Goldman Sachs Group, L.P., as
amended.**
10.3 Lease, dated as of August 22, 1997, between Ten Hanover LLC
and The Goldman Sachs Group, L.P.**
10.4 Lease, dated as of July 16, 1998, between TCC Acquisition
Corp. and The Goldman Sachs Group, L.P.**
10.5 Agreement for Lease, dated April 2, 1998, among (i) JC No. 3
(UK) Limited and Fleet Street Square Management Limited
trading as Fleet Street Partnership, (ii) Goldman Sachs
International, (iii) Restamove Limited, (iv) The Goldman Sachs
Group, L.P. and (v) Itochu Corporation.**
II-1
<PAGE> 4
10.6 Annexure 1 to Agreement for Lease, dated April 2, 1998, among (i) JC
No. 3 (UK) Limited and Fleet Street Square Management Limited trading
as Fleet Street Partnership, (ii) Goldman Sachs International, (iii)
Restamove Limited, (iv) The Goldman Sachs Group, L.P. and (v) Itochu
Corporation (Form of Occupational Lease among (i) JC No. 3 (UK) Limited
and Fleet Street Square Management Limited trading as Fleet Street
Partnership, (ii) Goldman Sachs International and (iii) The Goldman
Sachs Group, L.P.).**
10.7 Agreement relating to Developer's Fit Out Works to be carried out at
120 Fleet Street, London, dated April 2, 1998, among (i) JC No. 3 (UK)
Limited and Fleet Street Square Management Limited, (ii) Goldman Sachs
Property Management, (iii) Itochu Corporation and (iv) The Goldman
Sachs Group, L.P.**
10.8 Agreement relating to One Carter Lane, London EC4, dated March 25,
1998, among Britel Fund Trustees Limited, Goldman Sachs International,
The Goldman Sachs Group, L.P., English Property Corporation plc and
MEPC plc.**
10.9 Fit Out Works Agreement relating to One Carter Lane, London EC4, dated
March 25, 1998, among Britel Fund Trustees Limited, Goldman Sachs
International, Goldman Sachs Property Management, The Goldman Sachs
Group, L.P., English Property Corporation plc and MEPC plc.**
10.10 Underlease of premises known as One Carter Lane, London EC4, dated
September 9, 1998, among Britel Fund Trustees Limited, Goldman Sachs
International and The Goldman Sachs Group, L.P.**
10.11 Lease, dated March 5, 1994, among Shine Hill Development Limited, Shine
Belt Limited, Fair Page Limited, Panhy Limited, Maple Court Limited and
Goldman Sachs (Asia) Finance, as amended.**
10.12 Guarantee, dated November 17, 1993, between Shine Hill Development
Limited and The Goldman Sachs Group, L.P.**
10.13 Agreement for Lease, dated November 29, 1998, between Turbo Top Limited
and Goldman Sachs (Asia) Finance.**
10.14 Summary of Tokyo Leases.**
10.15 The Goldman Sachs 1999 Stock Incentive Plan.*
10.16 The Goldman Sachs Defined Contribution Plan.*
10.17 Letter Agreement with Mr. Weinberg.**
10.18 The Goldman Sachs Partner Compensation Plan.*
10.19 Form of Employment Agreement.*
10.20 Form of Agreement Relating to Noncompetition and Other Covenants.*
10.21 Form of Pledge Agreement.*
10.22 Form of Award Agreement (Formula RSUs).*
10.23 Form of Award Agreement (Discretionary RSUs).*
10.24 Form of Option Agreement (Discretionary RSUs).*
II-2
<PAGE> 5
10.25 Tax Indemnification Agreement, by and among The Goldman Sachs Group,
Inc. and various parties.*
10.26 Form of Shareholders' Agreement among The Goldman Sachs Group, Inc. and
various parties.*
10.27 Instrument of Indemnification.*
10.28 Form of Indemnification Agreement.*
10.29 Subscription Agreement, dated as of April 24, 1992, among the Trustees
of the Estate of Bernice Pauahi Bishop, Pauahi Holdings Corporation,
Royal Hawaiian Shopping Center, Inc. and The Goldman Sachs Group,
L.P.**
10.30 Subscription Agreement, dated as of November 21, 1994, among the
Trustees of the Estate of Bernice Pauahi Bishop, Pauahi Holdings
Corporation, Royal Hawaiian Shopping Center, Inc. and The Goldman Sachs
Group, L.P.**
10.31 Letter Agreement, dated March 15, 1999, among Kamehameha Activities
Association and The Goldman Sachs Group, L.P. (the "Kamehameha Letter
Agreement").**
10.32 Amended and Restated Subscription Agreement, dated as of March 28,
1989, among The Sumitomo Bank, Limited, Sumitomo Bank Capital Markets,
Inc., Goldman, Sachs & Co. and The Goldman Sachs Group, L.P.**
10.33 Letter Agreement, dated March 15, 1999, among The Sumitomo Bank,
Limited, Sumitomo Bank Capital Markets, Inc. and The Goldman Sachs
Group, L.P. (the "Sumitomo Letter Agreement").**
10.34 Lease, dated September 24, 1992, from LDT Partners to Goldman Sachs
International.**
10.35 Amendment to Kamehameha Letter Agreement (filed as Exhibit 10.31),
dated April 30, 1999, among Kamehameha Activities Association, the
Trustees of the Estate of Bernice Pauahi Bishop, The Goldman Sachs
Group, L.P. and The Goldman Sachs Group, Inc.*
10.36 Amendment to Sumitomo Letter Agreement (filed as Exhibit 10.33), dated
April 30, 1999, among The Sumitomo Bank, Limited, Sumitomo Bank Capital
Markets, Inc., The Goldman Sachs Group, L.P., The Goldman Sachs Group,
Inc. and Goldman, Sachs & Co.*
10.37 Voting Agreement, dated as of April 30, 1999, by and among The Goldman
Sachs Group, Inc., on the one hand, and The Trustees of the Estate of
Bernice Pauahi Bishop and Kamehameha Activities Association, on the
other hand.*
10.38 Voting Agreement, dated as of April 30, 1999, by and among The Goldman
Sachs Group, Inc., on the one hand, and The Sumitomo Bank, Limited, and
Sumitomo Bank Capital Markets, Inc., on the other hand.*
10.39 Letter Agreement, dated August 18, 1999, between The Goldman Sachs
Group, Inc. and Mr. James A. Johnson.****
10.40 Letter Agreement, dated August 18, 1999, between The Goldman Sachs
Group, Inc. and Sir John Browne.*****
12.1 Statement re computation of ratios of earnings to fixed charges.***
15.1 Letter re Unaudited Interim Financial Information.***
21.1 List of subsidiaries of The Goldman Sachs Group, L.P.**
23.1 Consent of PricewaterhouseCoopers LLP.***
II-3
<PAGE> 6
23.2 Consent of Gregory K. Palm, Esq. (included in Exhibit 5.1 above).***
23.3 Consent of Sullivan & Cromwell (included in Exhibit 8.1 above).***
23.4 Consent of Securities Data Company.***
23.5 Consent of Sullivan & Cromwell (included in Exhibit 8.2 above).
24.1 Powers of Attorney.***
25.1 Statement of Eligibility of Trustee.***
27.1 Financial Data Schedule.***
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* Incorporated herein by reference to the corresponding exhibit to the
registrant's registration statement on Form S-1 (No. 333-75213).
** Incorporated herein by reference to the corresponding exhibit to the
registrant's registration statement on Form S-1 (No. 333-74449).
*** Previously filed.
**** Incorporated herein by reference to exhibit 10.1 to the registrant's
Quarterly Report on Form 10-Q for the quarterly period ended August 27,
1999 (No. 001-14965).
***** Incorporated herein by reference to exhibit 10.2 to the registrant's
Quarterly Report on Form 10-Q for the quarterly period ended August 27,
1999 (No. 001-14965).
II-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Post-Effective Amendment No. 3 to the
registration statement (No. 333-75321) to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, New York on the
13th day of October, 1999.
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Gregory K. Palm
-----------------------------
Name: Gregory K. Palm
Title: Executive Vice President
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 3 to the registration statement (No. 333-75321) has
been signed by the following persons in the capacities indicated on the 13th day
of October, 1999:
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TITLE SIGNATURE
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Director, Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer) *
---------------------
Henry M. Paulson, Jr.
Director and Vice Chairman *
---------------------
Robert J. Hurst
Director, President and Co-Chief Operating
Officer *
---------------------
John A. Thain
Director, President and Co-Chief Operating
Officer *
---------------------
John L. Thornton
Director
---------------------
Sir John Browne
Director
---------------------
James A. Johnson
Director *
---------------------
John L. Weinberg
Chief Financial Officer
(Principal Financial Officer) *
---------------------
David A. Viniar
Principal Accounting Officer *
---------------------
Sarah G. Smith
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II-5
<PAGE> 8
*By: /s/ Gregory K. Palm
----------------------------
Name: Gregory K. Palm
Attorney-in-Fact
II-6
<PAGE> 9
INDEX TO EXHIBITS
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EXHIBIT
NO. DESCRIPTION
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1.1 Form of Distribution Agreement.***
1.2 Terms Agreement, dated September 22, 1999, relating
to the 7.35% Notes due 2009.***
2.1 Plan of Incorporation.**
2.2 Agreement and Plan of Merger of The Goldman Sachs Corporation into The Goldman Sachs Group, Inc.*
2.3 Agreement and Plan of Merger of The Goldman Sachs Group, L.P. into The Goldman Sachs Group, Inc.*
3.1 Certificate of Incorporation of The Goldman Sachs Group, Inc.**
3.2 Amended and Restated Certificate of Incorporation of The Goldman Sachs Group, Inc.*
3.3 Amended and Restated By-Laws of The Goldman Sachs Group, Inc.*
4.1 Form of Indenture between The Goldman Sachs Group, Inc. and The Bank of New York.***
4.2 Form of debt securities of The Goldman Sachs Group, Inc. (included in Exhibit 4.1).***
4.3 Form of Floating Rate Medium-Term Note.***
4.4 Form of Fixed Rate Medium-Term Note.***
4.5 Form of Mandatory Exchangeable Note.***
4.6 Form of Exchangeable Note.***
4.7 Specimen of 7.35% Note due 2009.***
4.8 Specimen of Index-Linked Note due 2002 (Linked to the Nikkei 225).
5.1 Opinion of Gregory K. Palm, Esq., a General Counsel of The Goldman Sachs Group, Inc.***
8.1 Opinion of Sullivan & Cromwell, United States tax counsel to The Goldman Sachs Group, Inc., re
tax matters.***
8.2 Opinion of Sullivan & Cromwell, United States tax counsel to The Goldman Sachs Group, Inc., re
tax matters relating to 2.00% Exchangeable Notes due 2006 (Exchangeable for Common Stock of Wells Fargo &
Company).***
8.3 Opinion of Sullivan & Cromwell, United States tax counsel to The Goldman Sachs Group, Inc., re tax
matters relating to Index-Linked Note due 2002 (Linked to the Nikkei 225).
10.1 Lease, dated June 11, 1985, between Metropolitan Life Insurance Company and Goldman, Sachs & Co.**
10.2 Lease, dated April 5, 1994, between The Chase Manhattan Bank (National Association) and The
Goldman Sachs Group, L.P., as amended.**
10.3 Lease, dated as of August 22, 1997, between Ten Hanover LLC and The Goldman Sachs Group, L.P.**
10.4 Lease, dated as of July 16, 1998, between TCC Acquisition Corp. and The Goldman Sachs Group,
L.P.**
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<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
10.5 Agreement for Lease, dated April 2, 1998, among (i) JC No. 3 (UK) Limited and Fleet Street Square
Management Limited trading as Fleet Street Partnership, (ii) Goldman Sachs International, (iii)
Restamove Limited, (iv) The Goldman Sachs Group, L.P. and (v) Itochu Corporation.**
10.6 Annexure 1 to Agreement for Lease, dated April 2, 1998, among (i) JC No. 3 (UK) Limited and Fleet Street
Square Management Limited trading as Fleet Street Partnership, (ii) Goldman Sachs International, (iii)
Restamove Limited, (iv) The Goldman Sachs Group, L.P. and (v) Itochu Corporation (Form of Occupational
Lease among (i) JC No. 3 (UK) Limited and Fleet Street Square Management Limited trading as Fleet Street
Partnership, (ii) Goldman Sachs International and (iii) The Goldman Sachs Group, L.P.).**
10.7 Agreement relating to Developer's Fit Out Works to be carried out at 120 Fleet Street, London,
dated April 2, 1998, among (i) JC No. 3 (UK) Limited and Fleet Street Square Management Limited,
(ii) Goldman Sachs Property Management, (iii) Itochu Corporation and (iv) The Goldman Sachs
Group, L.P.**
10.8 Agreement relating to One Carter Lane, London EC4, dated March 25, 1998, among Britel Fund
Trustees Limited, Goldman Sachs International, The Goldman Sachs Group, L.P., English Property
Corporation plc and MEPC plc.**
10.9 Fit Out Works Agreement relating to One Carter Lane, London EC4, dated March 25, 1998, among Britel Fund
Trustees Limited, Goldman Sachs International, Goldman Sachs Property Management, The Goldman Sachs Group,
L.P., English Property Corporation plc and MEPC plc.**
10.10 Underlease of premises known as One Carter Lane, London EC4, dated September 9, 1998, among Britel Fund
Trustees Limited, Goldman Sachs International and The Goldman Sachs Group, L.P.**
10.11 Lease, dated March 5, 1994, among Shine Hill Development Limited, Shine Belt Limited, Fair Page
Limited, Panhy Limited, Maple Court Limited and Goldman Sachs (Asia) Finance, as amended.**
10.12 Guarantee, dated November 17, 1993, between Shine Hill Development Limited and The Goldman Sachs
Group, L.P.**
10.13 Agreement for Lease, dated November 29, 1998, between Turbo Top Limited and Goldman Sachs (Asia)
Finance.**
10.14 Summary of Tokyo Leases.**
10.15 The Goldman Sachs 1999 Stock Incentive Plan.*
10.16 The Goldman Sachs Defined Contribution Plan.*
10.17 Letter Agreement with Mr. Weinberg.**
10.18 The Goldman Sachs Partner Compensation Plan.*
10.19 Form of Employment Agreement.*
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
10.20 Form of Agreement Relating to Noncompetition and Other Covenants.*
10.21 Form of Pledge Agreement.*
10.22 Form of Award Agreement. (Formula RSUs).*
10.23 Form of Award Agreement. (Discretionary RSUs).*
10.24 Form of Option Agreement. (Discretionary Options).*
10.25 Tax Indemnification Agreement, by and among The Goldman Sachs Group, Inc. and various parties.*
10.26 Form of Shareholders' Agreement among The Goldman Sachs Group, Inc. and various parties.*
10.27 Instrument of Indemnification.*
10.28 Form of Indemnification Agreement.*
10.29 Subscription Agreement, dated as of April 24, 1992, among the Trustees of the Estate of Bernice
Pauahi Bishop, Pauahi Holdings Corporation, Royal Hawaiian Shopping Center, Inc. and The Goldman
Sachs Group, L.P.**
10.30 Subscription Agreement, dated as of November 21, 1994, among the
Trustees of the Estate of Bernice Pauahi Bishop, Pauahi Holdings
Corporation, Royal Hawaiian Shopping Center, Inc. and The Goldman Sachs
Group, L.P.**
10.31 Letter Agreement, dated March 15, 1999, among Kamehameha Activities Association and The Goldman
Sachs Group, L.P. (the "Kamehameha Letter Agreement").**
10.32 Amended and Restated Subscription Agreement, dated as of March 28, 1989, among The Sumitomo Bank,
Limited, Sumitomo Bank Capital Markets, Inc., Goldman, Sachs & Co. and The Goldman Sachs Group,
L.P.**
10.33 Letter Agreement, dated March 15, 1999, among The Sumitomo Bank, Limited, Sumitomo Bank Capital
Markets, Inc. and The Goldman Sachs Group, L.P. (the "Sumitomo Letter Agreement"). **
10.34 Lease, dated September 24, 1992, from LDT Partners to Goldman Sachs International.**
10.35 Amendment to Kamehameha Letter Agreement (filed as Exhibit 10.31), dated April 30, 1999, among
Kamehameha Activities Association, the Trustees of the Estate of Bernice Pauahi Bishop, The
Goldman Sachs Group, L.P. and The Goldman Sachs Group, Inc.*
10.36 Amendment to Sumitomo Letter Agreement (filed as Exhibit 10.33), dated April 30, 1999, among The
Sumitomo Bank, Limited, Sumitomo Bank Capital Markets, Inc., The Goldman Sachs Group, L.P., The
Goldman Sachs Group, Inc. and Goldman, Sachs & Co.*
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
10.37 Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., on the
one hand, and The Trustees of the Estate of Bernice Pauahi Bishop and Kamehameha Activities
Association, on the other hand.*
10.38 Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., on the
one hand, and The Sumitomo Bank, Limited, and Sumitomo Bank Capital Markets, Inc., on the other
hand.*
10.39 Letter Agreement, dated August 18, 1999, between The
Goldman Sachs Group, Inc. and Mr. James A. Johnson.****
10.40 Letter Agreement, dated August 18, 1999, between The
Goldman Sachs Group, Inc. and Sir John Brown.*****
12.1 Statement re computation of ratios of earnings to fixed charges.***
15.1 Letter re Unaudited Interim Financial Information.***
21.1 List of subsidiaries of The Goldman Sachs Group, L.P.**
23.1 Consent of PricewaterhouseCoopers LLP.***
23.2 Consent of Gregory K. Palm, Esq. (included in Exhibit 5.1 above).***
23.3 Consent of Sullivan & Cromwell (included in Exhibit 8.1 above).***
23.4 Consent of Securities Data Company.***
23.5 Consent of Sullivan & Cromwell (included in Exhibit 8.2 above).
24.1 Powers of Attorney.***
25.1 Statement of Eligibility of Trustee.***
27.1 Financial Data Schedule.***
</TABLE>
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* Incorporated herein by reference to the corresponding exhibit
to the registrant's registration statement on Form S-1 (No.
333-75213).
** Incorporated herein by reference to the corresponding exhibit
to the registrant's registration statement on Form S-1 (No.
333-74449).
*** Previously filed.
**** Incorporated herein by reference to exhibit 10.1 to the
registrant's Quarterly Report on Form 10-Q for the
quarterly period ended August 27, 1999 (No. 001-14965).
***** Incorporated herein by reference to exhibit 10.2 to the
registrants Quarterly Report on Form 10-Q for the
quarterly period ended August 27, 1999 (No. 001-14965).
<PAGE> 1
EXHIBIT 4.8
(Face of Security)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE GOLDMAN
SACHS GROUP, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(Face of Security continued on next page)
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<PAGE> 2
CUSIP
NO. 38141GAC8
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
------------
Index-Linked Note due 2002
(Linked to the Nikkei 225)
------------
The following terms apply to this Security. Capitalized terms that
are not defined the first time they are used in this Security shall have the
meanings indicated elsewhere in this Security.
FACE AMOUNT: $46,859,000
PRINCIPAL AMOUNT: on the Stated Maturity Date, the Company will pay the Holder
cash equal to the greater of (i) the Face Amount then Outstanding
multiplied by a fraction, the numerator of which is the Final Index Level
and the denominator of which is the Reference Index Level, and (ii) 90% of
the Face Amount then Outstanding, all as provided on the face of this
Security.
INDEX: the Nikkei 225, as determined and published by Nihon Keizai Shimbun,
Inc., or any Successor Index, in each case as it may be modified, replaced
or adjusted from time to time as provided on the face of this Security.
CALCULATION AGENT: Goldman, Sachs & Co.
DEFEASANCE: neither full defeasance nor covenant defeasance applies to this
Security.
OTHER TERMS:
All terms used in this Security that are not defined in this
Security but are defined in the Indenture referred to on the reverse of this
Security shall have the meanings assigned to them in the Indenture. References
in this Security to numbered sections are to numbered sections on the face of
this Security, unless the context requires otherwise. Section headings on the
face of this Security
(Face of Security continued on next page)
-2-
<PAGE> 3
are for convenience only and shall not affect the construction of this Security.
"Authorized Denomination" means, with respect to this security, a
Face Amount of $10,000 or a multiple of $1,000 in excess of $10,000.
"Business Day" means any day that is not a Saturday, a Sunday or a
day on which either the Tokyo Stock Exchange or the Osaka Stock Exchange (or, if
different, the principal securities market in which the Index Stocks are then
quoted or traded), or on which banking institutions in The City of New York
generally, are authorized or obligated by law, regulation or executive order to
close, or on which the Index is not calculated and published by the Index
Sponsor because the Index Sponsor is not open for business.
"Default Amount" means, on any day, an amount, in U.S. dollars,
equal to the cost of having a Qualified Financial Institution expressly assume,
as of such day, the due and punctual payment of the principal of and any
interest on this Security, and the performance or observance of every covenant
hereof and of the Indenture on the part of the Company to be performed or
observed with respect to this Security (or to undertake other obligations
providing substantially equivalent economic value to the Holder of this Security
as the Company's obligations hereunder). Such cost will equal (i) the lowest
amount that a Qualified Financial Institution (selected as provided below) would
charge to effect such assumption (or undertaking) plus (ii) the reasonable
expenses (including reasonable attorneys' fees) incurred by the Holder of this
Security in preparing any documentation necessary for such assumption (or
undertaking). During the Default Quotation Period, each of the Holder of this
Security and the Company may request a Qualified Financial Institution to
provide a quotation of the amount it would charge to effect such assumption (or
undertaking) and notify the other in writing of such quotation. The amount
referred to in clause (i) of this paragraph will equal the lowest (or, if there
is only one, the only) quotation so obtained, and as to which notice is so
given, during the Default Quotation Period; provided that, with respect to any
quotation, the party not obtaining
(Face of Security continued on next page)
-3-
<PAGE> 4
such quotation may object, on reasonable and significant grounds, to the
effectuation of such assumption (or undertaking) by the Qualified Financial
Institution providing such quotation and notify the other party in writing of
such grounds within two Business Days after the last day of the Default
Quotation Period, in which case such quotation will be disregarded in
determining the Default Amount. The "Default Quotation Period" will be the
period beginning on the day the Default Amount first becomes due and payable and
ending on the third Business Day after such due day, unless no such quotation is
so obtained, or unless every such quotation so obtained is objected to within
five Business Days after such due day as provided above, in which case the
Default Quotation Period will continue until the third Business Day after the
first Business Day on which prompt notice is given of such a quotation as
provided above, unless such quotation is objected to as provided above within
five Business Days after such first Business Day, in which case the Default
Quotation Period will continue as provided in this sentence. Notwithstanding the
foregoing, if the Default Quotation Period (and the subsequent two Business Day
objection period) has not ended prior to the Determination Date, then the
Default Amount will equal the Principal Amount.
"Determination Date" means the fifth Business Day prior to October
6, 2002; provided, however, that if a Market Disruption Event occurs or is
continuing on that fifth prior Business Day, the Determination Date will be the
next succeeding Business Day on which a Market Disruption Event does not occur
and is not continuing; provided, further, that in no event will the
Determination Date be later than October 6, 2002 or, if October 6, 2002 is not a
Business Day, later than the first Business Day after October 6, 2002.
"Final Index Level" means the closing level of the Index on the
Determination Date, subject to adjustment as provided in Section 3 on the face
of this Security.
"Index Sponsor" means, at any time, the Person or entity, including
any successor sponsor, that determines and publishes the Index as then in
effect.
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"Index Stocks" means, at any time, the stocks that comprise the
Index as then in effect, after giving effect to any additions, deletions or
substitutions.
"Market Disruption Event" means, with respect to the Index, (i) a
suspension, absence or material limitation of trading in Index Stocks
constituting 20% or more, by weight, of the Index on their primary market for
more than two hours of trading or during the one-half hour period preceding the
close of trading in such market, (ii) a suspension, absence or material
limitation of trading in option or futures contracts related to the Index or to
Index Stocks constituting 20% or more, by weight, of the Index, if available, in
the primary market for such contracts for more than two hours of trading or
during the one-half hour period preceding the close of trading in such market or
(iii) Index Stocks constituting 20% or more, by weight, of the Index, or option
or futures contracts related to the Index or to Index Stocks constituting 20% or
more, by weight, of the Index, if available, do not trade on what was the
primary market for those Index Stocks or contracts, in each case (i), (ii) and
(iii) as determined by the Calculation Agent; provided, however, that no such
event described in clause (i), (ii) or (iii) will be a Market Disruption Event
unless the Calculation Agent also determines that such event materially
interferes with the ability of the Company or any of its affiliates to unwind
all or a material portion of any hedge that any of them effects with respect to
this Security. For purposes of determining whether a Market Disruption Event has
occurred, (a) a limitation on the hours or numbers of days of trading in the
relevant market will not constitute a Market Disruption Event if it results from
an announced change in the regular business hours of such market, (b) a decision
to permanently discontinue trading in the relevant option or futures contracts
will not constitute a Market Disruption Event, (c) a suspension or limitation of
trading in an Index Stock or in option or futures contracts related to the Index
or an Index Stock, if available, in the primary market for such stock or such
contracts, by reason of (1) a price change exceeding limits set by such market,
(2) an imbalance of orders relating to such stock or such contracts
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<PAGE> 6
or (3) a disparity in bid and ask quotes relating to such stock or such
contracts, will, in each case (1), (2) and (3), constitute a suspension or
material limitation of trading in such stock or such contracts related to the
Index or an Index Stock and (d) an "absence of trading" in the primary market on
which an Index Stock, or on which option or futures contracts related to the
Index or to an Index Stock, are traded will not include any time when such
market is itself closed for trading under ordinary circumstances.
"Original Issue Date" means October 6, 1999.
"Qualified Financial Institution" means, at any time, a financial
institution organized under the laws of any jurisdiction in the United States of
America, Europe or Japan that at such time has outstanding debt obligations with
a stated maturity of one year or less from the date of issue and rated A-1 or
higher by Standard & Poor's Ratings Group (or any successor) or P-1 or higher by
Moody's Investors Service, Inc. (or any successor) or, in either case, such
other comparable rating, if any, then used by such rating agency.
"Reference Index Level" means 17,282.28.
"Stated Maturity Date" means October 6, 2002 or, if such day is not
a Business Day, the next succeeding Business Day; provided, however, that if the
fifth Business Day preceding October 6, 2002 is not the Determination Date, the
Stated Maturity Date will be the fifth Business Day succeeding the Determination
Date; provided, further, that in no event will the Stated Maturity Date be later
than the fifth Business Day after October 6, 2002 or, if October 6, 2002 is not
a Business Day, later than the sixth Business Day after October 6, 2002.
"Successor Index" means any substitute index approved by the
Calculation Agent as a Successor Index pursuant to section 3.
"Trade Date" means September 29, 1999.
-----------------------
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1. Promise to Pay Principal
The Goldman Sachs Group, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., as nominee for The Depository Trust Company, or registered assigns, as
principal, the Principal Amount on the Stated Maturity Date, subject to the
other provisions of this Security. The Company also promises to pay interest on
any overdue principal, at the rate of 6.90% per annum (to the extent that
payment of such interest shall be legally enforceable), from the date such
principal is due until it is paid or made available for payment, and any such
interest shall be payable to the Holder on demand. Except as provided in the
prior sentence, this Security shall not bear interest.
2. Principal Amount
The principal of this Security that becomes due and payable on the
Stated Maturity Date shall be the Principal Amount. The principal of this
Security that becomes due and payable upon acceleration of the Maturity hereof
after an Event of Default has occurred pursuant to the Indenture shall be the
Default Amount. When the amount referred to above in this section 2 has been
paid as provided herein (or such amount has been made available for payment),
the principal of this Security shall be deemed to have been paid in full,
whether or not this Security shall have been surrendered for payment or
cancellation. References to the payment of the principal of this Security on any
day shall be deemed to mean the payment of cash that is payable on such day as
provided in this Security. Notwithstanding the foregoing, solely for the purpose
of determining whether any consent, waiver, notice or other action to be given
or taken by Holders of Securities pursuant to the Indenture has been given or
taken by Holders of Outstanding Securities in the requisite aggregate principal
amount, the principal amount of this Security on
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<PAGE> 8
any day will be deemed to equal the Face Amount then Outstanding. This Security
shall cease to be Outstanding as provided in the definition of such term in the
Indenture or when the principal of this Security shall be deemed to have been
paid in full as provided above and any interest payable on this Security has
been paid (or, in the case of any such interest, when such interest has been
made available for payment).
3. Discontinuance or Modification of the Index.
If the Index Sponsor discontinues publication of the Index and the
Index Sponsor or any other Person or entity publishes a substitute index that
the Calculation Agent determines is comparable to the Index and approves as a
Successor Index, then the Calculation Agent will determine the amount payable on
the Stated Maturity Date by reference to the Successor Index.
If the Calculation Agent determines that the publication of the
Index is discontinued and there is no Successor Index, or that the level of the
Index is not available on the Determination Date because of a Market Disruption
Event or for any other reason, the Calculation Agent will determine the amount
payable on the Stated Maturity Date by reference to a group of stocks and a
computation methodology that the Calculation Agent determines will as closely as
reasonably possible replicate the Index.
If the Calculation Agent determines that the Index, the stocks
comprising the Index or the method of calculating the Index is changed at any
time in any respect -- including any addition, deletion or substitution and any
reweighting or rebalancing of Index Stocks and whether the change is made by the
Index Sponsor under its existing policies or following a modification of those
policies, is due to the publication of a Successor Index, is due to events
affecting one or more of the Index Stocks or their issuers or is due to any
other reason -- then the Calculation Agent will make such adjustments in the
Index or the method of its calculation as it believes are appropriate to ensure
that the Final Index Level used to determine the amount
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<PAGE> 9
payable on the Stated Maturity Date is equitable.
All determinations and adjustments to be made by the Calculation
Agent with respect to the Index may be made by the Calculation Agent in its sole
discretion.
4. Role of Calculation Agent.
The Calculation Agent will be solely responsible for all
determinations and calculations regarding the Index; whether a Market Disruption
Event has occurred and whether, and if so the day to which, the Determination
Date or Stated Maturity Date is to be postponed; Business Days; the Final Index
Level; the Default Amount; the amount payable in respect of this Security on the
Stated Maturity Date; and all such other matters as may be specified elsewhere
herein as matters to be determined by the Calculation Agent. The Calculation
Agent shall make all such determinations and calculations in its sole
discretion, and absent manifest error all determinations and calculations made
by the Calculation Agent shall be final and binding on the Company, the Holder
and all other Persons having an interest in this Security, without liability on
the part of the Calculation Agent.
The Company shall take such action as shall be necessary to ensure
that there is at all relevant times a financial institution serving as the
Calculation Agent hereunder. The Company may, in its sole discretion at any time
and from time to time, upon written notice to the Trustee, but without notice to
the Holder of this Security, terminate the appointment of any Person serving as
the Calculation Agent and appoint another Person (including any Affiliate of the
Company) to serve as such agent. Insofar as this Security provides for the
Calculation Agent to obtain closing levels or other information from any
institution or other source, the Calculation Agent may do so from any source or
sources of the kind contemplated or otherwise permitted hereby notwithstanding
that any one or more of such sources are such agent, Affiliates of such agent or
Affiliates of the Company.
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<PAGE> 10
5. Payment.
Payment on this Security will be made in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payment on this Security will be made to an
account designated by the Holder (in writing to the Company and the Trustee on
or before the Determination Date) and acceptable to the Company or, if no such
account is designated and acceptable as aforesaid, at the office or agency of
the Company maintained for that purpose in The City of New York, provided,
however, that, at the option of the Company, payment of any interest may be made
by check mailed to the address of the Holder as such address shall appear in the
Security Register; and provided, further, that payment at Maturity shall be made
only upon surrender of this Security at such office or agency (unless the
Company waives surrender). Notwithstanding the foregoing, if this Security is a
Global Security, any payment may be made pursuant to the Applicable Procedures
of the Depositary as permitted in said Indenture.
6. Holidays.
Notwithstanding any provision of this Security or of the Indenture,
if any payment of principal or interest would otherwise be due on this Security
on a day (the "Specified Day") that is not a Business Day, such delivery or
payment may be made (or such principal or interest may be made available for
payment) on the next succeeding Business Day with the same force and effect as
if such payment were made on the Specified Day. The provisions of this section
shall apply to this Security in lieu of the provisions of Section 113 of the
Indenture.
7. Reverse of this Security.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
8. Certificate of Authentication.
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<PAGE> 11
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
Dated: October 6, 1999
THE GOLDMAN SACHS GROUP, INC.
By /s/ Gregory K. Palm
-------------------------
Name: Gregory K. Palm
Title: Executive Vice
President and General
Counsel
This is one of the Securities of the series designated herein and
referred to in the Indenture.
THE BANK OF NEW YORK,
as Trustee
By /s/ Paul Schmalzel
------------------------------
Authorized Officer
<PAGE> 13
(Reverse of Security)
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of May 19, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. Insofar as
the provisions of the Indenture may conflict with the provisions set forth on
the face of this Security, the latter shall control for purposes of this
Security.
This Security is one of the series designated on the face hereof,
limited to an aggregate initial offering price not to exceed $15,000,000,000 (or
the equivalent thereof in any other currency or currencies or currency units),
which amount may be increased at the option of the Company if in the future it
determines that it may wish to sell additional Securities of this series.
References herein to "this series" mean the series designated on the face
hereof.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (considered together as one
class for this purpose). The Indenture also contains provisions (i) permitting
the Holders of a majority in principal amount of the Securities at the time
Outstanding of all series to be affected under the Indenture (considered
together as one class for this purpose), on behalf of the
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<PAGE> 14
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and (ii) permitting the Holders of a
majority in principal amount of the Securities at the time Outstanding of any
series to be affected under the Indenture (with each such series considered
separately for this purpose), on behalf of the Holders of all Securities of such
series, to waive certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
interest on this Security as herein provided.
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As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of this
Security is payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing.
Thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate Face Amount, will be issued
to the designated transferee or transferees.
This Security, and any other Securities of this series and of like
tenor, are issuable only in registered form without coupons in Authorized
Denominations. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different Authorized Denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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EXHIBIT 8.3
October 6, 1999
The Goldman Sachs Group, Inc.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
As United States tax counsel to The Goldman Sachs Group, Inc. (the
"Company") in connection with the issuance by the Company of $46,859,000
aggregate face amount of Index-Linked Notes (Linked to the Nikkei 225) due 2002,
which are part of the Company's Medium-Term Notes, Series B, we hereby confirm
to you that the discussion set forth under the heading "Supplemental Discussion
of United States Federal Income Tax Consequences" in Prospectus Supplement No.
43, dated September 29, 1999, to the Prospectus dated May 18, 1999 (the
"Prospectus Supplement"), which forms a part of the Registration Statement of
the Company to which this opinion is filed as an exhibit, is our opinion,
subject to the limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading
"Supplemental Discussion of United States Federal Income Tax Consequences" in
the Prospectus Supplement. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
/s/ Sullivan & Cromwell
