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EXHIBIT Q
THE GOLDMAN SACHS GROUP, INC.
COMMON STOCK, PAR VALUE $.01 PER SHARE
IRREVOCABLE POWER OF ATTORNEY OF SELLING STOCKHOLDER
The undersigned stockholder of The Goldman Sachs Group, Inc., a Delaware
corporation (the "Company"), understands that the undersigned and other
stockholders of the Company (the undersigned and such other stockholders being
hereinafter referred to as the "Selling Stockholders") propose to sell certain
shares of Common Stock, par value $.01 per share (the "Common Stock"), of the
Company to the several underwriters (the "Underwriters") named in the
Underwriting Agreement referred to below, represented by Goldman, Sachs & Co.
and certain other investment banking firms to be named (the "Representatives"),
and that the Underwriters propose to offer such shares to the public. The
undersigned also understands that, in connection with the public offering
pursuant to the Underwriting Agreement (as defined below), the Company has filed
a Registration Statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") to register under the Securities Act of
1933, as amended (the "1933 Act"), the offering of the shares to be sold by the
Selling Stockholders. It is understood that at this time there is no commitment
on the part of the Underwriters to purchase any shares of Common Stock and no
assurance that the Underwriting Agreement will be entered into by the Company or
the Underwriters.
1. In connection with the foregoing, the undersigned hereby
irrevocably appoints Henry M. Paulson, Jr., Robert J. Hurst, John A. Thain and
John L. Thornton, and any of them acting alone, the attorneys-in-fact, with full
power of substitution and resubstitution (collectively the "Attorneys-in-Fact"
and individually an "Attorney-in-Fact"), of the undersigned, and agrees that the
Attorneys-in-Fact, or any of them acting alone, may also act as
attorneys-in-fact for any other Selling Stockholder, with full power and
authority in the name of, and for and on behalf of, the undersigned:
(a) to determine, in the sole discretion of the Attorneys-in-Fact, or
any of them acting alone, the price per share of Common Stock to be set forth in
Section 2(a) of the Underwriting Agreement;
(b) to do all things necessary to sell to the Underwriters up to the
number (the "Maximum Number") of shares of Common Stock set forth opposite the
name of the undersigned at the end of this instrument (the "Shares");
(c) for the purpose of effecting such sale, to negotiate, execute,
deliver and perform the undersigned's obligations under an underwriting
agreement (the "Underwriting Agreement") among the Company, the Selling
Stockholders and the Representatives, as representatives of the several
Underwriters named therein, in substantially the form included on the World Wide
Web at https://www.gs.com/gsgi2000/ (the "Website"), together with such
additions thereto, deletions therefrom and changes thereto (other than any
additions, changes or deletions that would cause the number of Shares of Common
Stock to be sold to exceed the Maximum Number) as may be approved in the sole
discretion of the Attorneys-in-Fact, or any of them acting alone, such approval
to be conclusively evidenced by the execution and delivery of the Underwriting
Agreement by the Attorneys-in-Fact, or any of them acting alone;
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(d) to execute and deliver any amendments, modifications or
supplements to the Underwriting Agreement, to amend, modify or supplement any of
the terms thereof including, without limitation, the terms of the offering;
provided, however that no such amendment, modification or supplement shall
increase the number of the Shares to be sold by the undersigned to more than the
Maximum Number in the aggregate;
(e) to execute, deliver and perform a Custody Agreement and Documented
Approval (the "Custody Agreement") among the undersigned, the other Selling
Stockholders and The Chase Manhattan Bank, as Custodian, in substantially the
form included on the Website, together with such additions thereto, deletions
therefrom and changes thereto as may be approved in the sole discretion of the
Attorneys-in-Fact, or any of them acting alone, such approval to be conclusively
evidenced by the execution and delivery of the Custody Agreement by the
Attorneys-in-Fact, or any of them acting alone;
(f) to give such orders and instructions to any person as the
Attorneys-in-Fact, or any of them acting alone, may determine, including,
without limitation, orders or instructions for the following: (i) the transfer
on the books of the Company of the Shares in order to effect their sale
(including the names in which new certificates for the Shares are to be issued
and the denominations thereof), (ii) the purchase of any transfer tax stamps
necessary in connection with the transfer of the Shares, (iii) the delivery to
or for the account of the Underwriters of the certificates for the Shares
against receipt of the purchase price therefor, (iv) the payment out of the
proceeds of any sale of the Shares to the Underwriters of all expenses as are to
be borne by the undersigned in accordance with the terms of the Underwriting
Agreement, (v) the remittance of the net balance of the proceeds from any sale
of the Shares to be sold in accordance with such payment instructions as the
Attorneys-in-Fact, or any of them acting alone, may have provided to the
Underwriters, and (vi) the use of a portion of the net proceeds to repay any
indebtedness that the undersigned is required to repay with the proceeds from
the sale of the Shares;
(g) to join the Company in withdrawing the Registration Statement if
the Company should desire to withdraw such registration;
(h) to retain legal counsel in connection with any and all matters
referred to herein (which counsel may, but need not be, counsel for the
Company);
(i) to agree upon the allocation and to arrange payment therefor of
the expenses of the public offering as set forth in the Underwriting Agreement
(including, without limitation, the fees and expenses of counsel referred to
above) between and among the Company and the Selling Stockholders, including the
undersigned;
(j) to give such notices and to take such actions as are necessary,
desirable or appropriate to transfer the Shares on the books and records of The
Chase Manhattan Bank and ChaseMellon Shareholder Services, L.L.C.; and
(k) to make, execute, acknowledge and deliver all other contracts,
orders, receipts, notices, requests, instructions, certificates, letters and
other writings, including communications to the Commission (including a request
or requests for acceleration of the effective date of the Registration
Statement) and state securities law authorities, any
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amendments to the Underwriting Agreement or the Custody Agreement, or any
agreement with the Company with regard to expenses, and certificates and other
documents required to be delivered by or on behalf of the undersigned pursuant
to the Underwriting Agreement or the Custody Agreement and specifically to
execute on behalf of the undersigned stock powers and transfer instructions
relating to the Shares to be sold by the undersigned, and in general to do all
things and to take all action which the Attorneys-in-Fact, or any of them acting
alone, may consider necessary, desirable or appropriate in connection with, or
to carry out and comply with, all terms and conditions of the Underwriting
Agreement and the Custody Agreement and the aforesaid sale of Shares to the
several Underwriters.
2. The undersigned hereby makes, at and as of the date of this Power
of Attorney, with and to the several Underwriters each of the representations,
warranties and agreements of each Selling Stockholder set forth in the
Underwriting Agreement and the Custody Agreement included on the Website, and
all such representations, warranties and agreements are incorporated by
reference herein in their entirety (the representations, warranties and
agreements being subject, however, to the exception that orders or other
authorizations that may be required under the 1933 Act in connection with the
purchase and distribution by the Underwriters of the Shares to be sold by the
undersigned have not yet been obtained).
The undersigned further:
(a) represents and warrants to, and agrees with, the several
Underwriters that this Power of Attorney has been duly executed and delivered by
or on behalf of the undersigned and constitutes a valid and binding agreement of
the undersigned in accordance with its terms; and
(b)(i) confirms to the several Underwriters the accuracy of the
information concerning the undersigned and the undersigned's shareholding in the
Company previously provided to the Company, (ii) also confirms to the several
Underwriters the accuracy of the information concerning the undersigned
contained or to be contained in any selling stockholder's questionnaire or other
written document furnished by the undersigned to the Company for purposes of the
Registration Statement or any prospectus (preliminary or final) contained
therein or filed pursuant to Rule 424 under the 1933 Act or in any amendment or
supplement thereto (including any documents incorporated by reference therein),
(iii) agrees with the Company and the several Underwriters immediately to notify
the Company and promptly (but in any event within two business days thereafter)
to confirm the same in writing if, during the period or at the date(s) referred
to in paragraph 4 hereof, there should be any change affecting the accuracy of
the above-mentioned information, or if any subsequent version of such section of
the prospectus delivered to the undersigned should be inaccurate, and (iv)
agrees with the Company and the several Underwriters that for all purposes of
the representations, warranties and agreements incorporated by reference herein
from the Underwriting Agreement and the Custody Agreement, delivery of this
Power of Attorney and the statements contained herein constitute (and in the
absence of any such notification as is referred to in subclause (iii) given
prior to the date on which the Underwriting Agreement is executed and delivered
by the undersigned will constitute on a continuing basis) written information
furnished by the undersigned to the Company for use in the Registration
Statement and any such prospectus, amendment or supplement.
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3. This Power of Attorney and all authority conferred hereby are
granted and conferred subject to the interests of the Underwriters, the Company
and the other Selling Stockholders; and, in consideration of those interests and
for the purpose of completing the transactions contemplated by the Underwriting
Agreement, the Custody Agreement and this Power of Attorney, this Power of
Attorney and all authority conferred hereby, to the extent enforceable by law,
shall be deemed an agency coupled with an interest and be irrevocable and not
subject to withdrawal or termination by the undersigned or by operation of law,
whether by the death, disability, incompetency or incapacity of the undersigned
or any executor, guardian, administrator or trustee or the termination of any
estate or trust or by the merger, consolidation, dissolution or liquidation of
any corporation or partnership or by the occurrence of any other event, and the
obligations of the Selling Stockholder under the Underwriting Agreement and the
Custody Agreement similarly are not to be subject to termination. If any such
individual or any such executor or trustee should die or become disabled,
incompetent or incapacitated or if any such estate or trust should be terminated
or if any such corporation or partnership should be dissolved or liquidated or
if any other such event should occur before the delivery of the Shares to be
sold by the undersigned under the Underwriting Agreement, certificates
representing such Shares shall be delivered by or on behalf of the undersigned
in accordance with the terms and conditions of the Underwriting Agreement and
all other actions required to be taken under the Underwriting Agreement shall be
taken, and actions taken by the Attorneys-in-Fact, or any of them acting alone,
pursuant to this Power of Attorney shall be as valid as if such death,
disability, incompetency, incapacity, termination, dissolution, liquidation or
other event had not occurred, regardless of whether or not the
Attorneys-in-Fact, or any of them acting alone, shall have received notice of
such death, disability, incompetency, incapacity, termination, dissolution,
liquidation or other event.
Notwithstanding the foregoing, this Power of Attorney shall terminate on
October 15, 2000 if the Underwriting Agreement is not executed and delivered
prior to such date; subject, however, to all lawful action done or performed by
the Attorneys-in-Fact, or any of them acting alone, pursuant to this Power of
Attorney prior to such date.
4. The undersigned will immediately notify the Attorneys-in-Fact, the
Company and the Representatives of the occurrence of any event which shall cause
the representations, warranties and agreements contained herein not to be true
and correct during the period of the public offering of the Shares or at any
delivery of the Shares to the Underwriters pursuant to the Underwriting
Agreement.
5. The undersigned ratifies all that the Attorneys-in-Fact shall do
by virtue of this Power of Attorney. All actions may be taken by any of the
Attorneys-in-Fact alone. In the event that any statement, request, notice or
instruction given by one Attorney-in-Fact shall be inconsistent with that given
by another, any such statement, request, notice or instruction from Henry M.
Paulson, Jr. shall prevail.
6. By executing this Power of Attorney, the undersigned agrees to
become a party to, and to be bound by the terms and provisions of, the
Supplemental Registration Rights Instrument (the "Supplemental Agreement"),
among the Company and the Selling Stockholders listed therein, in substantially
the form included on the Website, to the Registration Rights Instrument, dated
as of December 10, 1999. The
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Attorneys-in-Fact, or any one of them acting alone, may make such additions,
deletions and changes to the Supplemental Agreement as the Attorneys-in-Fact, or
any of them acting alone, may deem necessary, desirable or appropriate, such
necessity, desirability or appropriateness to be conclusively evidenced by a
written approval of the Supplemental Agreement.
7. The undersigned agrees that, in the absence of bad faith, none of
the Attorneys-in-Fact shall have any liability whatsoever to the undersigned for
any action taken or omitted to be taken pursuant to this Power of Attorney.
Without limiting the generality of the foregoing, the undersigned agrees that no
Attorney-in-Fact will have any liability with respect to establishing the price
per share at which the Shares are sold to the Underwriters. The undersigned
further agrees to hold the Attorneys-in-Fact, jointly and severally, free and
harmless from any and all loss, damage, liability or expense incurred in
connection herewith, including reasonable attorneys' fees and costs, which they,
or any of them acting alone, may sustain as a result of any action taken or
omitted to be taken in good faith hereunder, and to reimburse the
Attorneys-in-Fact for their expenses, as they are incurred, in connection with
any suit, action or proceeding relating to or arising out of an action taken or
omitted to be taken hereunder.
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8. This Power of Attorney shall be governed by, and construed in
accordance with, the laws of the State of New York.
Dated: July __, 2000
Maximum number of shares
of Common Stock to be sold:
_________ shares
(can not exceed <<available>> shares)
Signature of Selling Stockholder,
<<PMD>>
If Selling Stockholder is an
individual, sign here: -------------------------------
If Selling Stockholder is not an
individual, sign here and
indicate name and title of signer: By:
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Name:
Title:
IMPORTANT: THE SELLING STOCKHOLDER'S SIGNATURE MUST BE (i) NOTARIZED IF
THE SIGNATORY IS A RESIDENT OF THE U.S. OR (ii) WITNESSED BY A GOLDMAN
SACHS EMPLOYEE IF THE SIGNATORY IS NOT A RESIDENT OF THE U.S. SEE NEXT
PAGE.
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If the signatory is a resident of the United States, this document must be
notarized below:
STATE OF )
ss.:
COUNTY OF )
On the _____ day of July, 2000 before me personally came to me known and
known to me to be the individual described in, and who executed the foregoing
instrument, and (s)he acknowledged to me that (s)he executed the same.
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Notary Public
My term expires:
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If the signatory is not a resident of the U.S., the Selling Stockholder's
signature must be witnessed by a Goldman Sachs employee, who must sign below:
Witness:
Signature:
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Name:
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Employee ID#:
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