As filed with the Securities and Exchange Commission on July 24, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE GOLDMAN SACHS GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-4019460
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
85 Broad Street
New York, New York 10004
(212) 902-1000
(Address of Registrant's Principal Executive Offices)
GOLDMAN SACHS EMPLOYEES' PROFIT SHARING
RETIREMENT INCOME PLAN
(Full Title of the Plan)
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Gail S. Berney
The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
(212) 902-1000
with a copy to:
A. Richard Susko, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006
(212) 225-2000
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
Title of each class of
securities to Amount to be Proposed Proposed maximum Amount of
be registered registered (1) maximum aggregate registration
offering offering price fee
price per (2)
share (2)
The Goldman Sachs 2,000,000 $101.9375 $203,875,000 $53,823
Group, Inc. Common
Stock, par value $.01
per share
(1) Consists of shares of common stock of The Goldman Sachs Group, Inc. (the
"Shares") to be made available pursuant to the Goldman Sachs Employees'
Profit Sharing Retirement Income Plan (the "Plan"). This Registration
Statement also registers such indeterminable number of additional Shares as
may be required in the event of a stock dividend, stock split,
recapitalization or other similar change in the Shares. In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Plan.
(2) Estimated solely for purposes of calculation of the registration fee, in
accordance with Rule 457(h) of the Securities Act. Such estimate is based
upon the average of the high and low sales prices of the shares of common
stock of The Goldman Sachs Group, Inc. on July 19, 2000, as reported on the
New York Stock Exchange Composite Tape.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
All information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with the
Note to Part I of Form S-8 and Rule 428 of the Securities Act of 1933, as
amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by the
Corporation with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(i) The Corporation's Annual Report on Form 10-K for the fiscal year
ended November 26, 1999, filed with the Commission on February 14, 2000;
(ii) The Corporation's Quarterly Reports on Form 10-Q for the quarterly
period ended February 25, 2000, filed with the Commission on April 7, 2000, and
for the quarterly period ended May 26, 2000, filed with the Commission on July
5, 2000;
(iii) The Corporation's Current Reports on Form 8-K, filed with the
Commission on March 21, 2000, May 4, 2000, May 10, 2000, May 12, 2000 (8-K/A),
June 20, 2000 and July 18, 2000;
(iv) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end
of the fiscal year covered by the Annual Report referred to in (i) above; and
(v) The description of the Shares contained in the Corporation's
Registration Statement on Form 8-A, dated April 27, 1999 (File No. 001-14965),
of The Goldman Sachs Group, Inc., filed with the Commission pursuant to Section
12(b) of the Exchange Act.
All reports and other documents filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment hereto, which indicates that all securities offered hereunder have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee of or agent to the Registrant. The
statute provides that it is not exclusive of other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise. Section 6.4 of the
Registrant's by-laws provides for indemnification by the Registrant of any
person who is or was a director or officer (as such term is defined in the
by-laws) of the Registrant, is or was a director or officer of any of its
subsidiaries, is or was a member of the Shareholders' Committee (defined in the
Shareholders' Agreement dated May 7, 1999 (the "Shareholders' Agreement"), which
has been filed as Exhibit 10.26 to the Corporation's Annual Report on Form 10-K
for the fiscal year ended November 26, 1999, filed with the Commission on
February 14, 2000 and incorporated herein by reference pursuant to Item 3)
acting pursuant to the Shareholders' Agreement or, at the request of the
Registrant, is or was serving as a director or officer of, or in any other
capacity for, any other enterprise, to the fullest extent permitted by law. The
by-laws also provide that the Registrant shall advance expenses to a director or
officer and, if reimbursement of such expenses is demanded in advance of the
final disposition of the matter with respect to which such demand is being made,
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it is ultimately determined that the director or officer is
not entitled to be indemnified by the Registrant. To the extent authorized from
time to time by the board of directors of the Registrant, the Registrant may
provide to any one or more employees of the Registrant, one or more officers,
employees and other agents of any subsidiary or one or more directors, officers,
employees and other agents of any other enterprise, rights of indemnification
and to receive payment or reimbursement of expenses, including attorneys' fees,
that are similar to the rights conferred in the by-laws of the Registrant on
directors and officers of the Registrant or any subsidiary or other enterprise.
The by-laws do not limit the power of the Registrant or its board of directors
to provide other indemnification and expense reimbursement rights to directors,
officers, employees, agents and other persons otherwise than pursuant to the
by-laws. The Registrant has entered into agreements with certain directors,
officers and employees who have been asked to serve in specified capacities at
subsidiaries and other entities.
The Registrant entered into an agreement that provides indemnification
to its directors and officers, the directors and certain officers of the former
general partner of The Goldman Sachs Group, L.P., members of its Management
Committee or its Partnership Committee or the former Executive Committee of The
Goldman Sachs Group, L.P. and all other persons requested or authorized by the
Registrant's board of directors or the board of directors of the former general
partner of The Goldman Sachs Group, L.P. to take actions on behalf of the
Registrant, The Goldman Sachs Group, L.P. or the former general partner of The
Goldman Sachs Group, L.P. in connection with the plan of incorporation, the
Registrant's Registration Statement on Form S-1 (File No. 333-74449), and
certain other registration statements for all losses, damages, costs and
expenses incurred by the indemnified person arising out of the relevant
registration statement or the transactions contemplated by the plan of
incorporation. This agreement is in addition to the Registrant's indemnification
obligations under its by-laws.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's amended and restated certificate of incorporation
provides for such limitation of liability.
Policies of insurance are maintained by the Registrant under which its
directors and officers are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of, and certain liabilities which might be imposed as a result of,
actions, suits or proceedings to which they are parties by reason of being or
having been such directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Registrant hereby undertakes to submit the Goldman Sachs Employees'
Profit Sharing Retirement Income Plan (the "Plan") and any amendment thereto to
the Internal Revenue Service (the "IRS") in a timely manner in order to obtain a
determination letter that the Plan is qualified under Section 401 of the
Internal Revenue Code of 1986 as amended, and to make any changes in the Plan
required by the IRS in order to obtain such a determination letter.
The following exhibits are filed with or incorporated by reference into
this Registration Statement (numbering corresponds to Exhibit Table in Item 601
of Regulation S-K):
Exhibit No. Description
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4.1 Amended and Restated Certificate of
Incorporation of The Goldman Sachs Group, Inc.
(filed as Exhibit 3.2 to Amendment No. 2 (File
No. 333-74449), filed with the Commission on
April 30, 1999, relating to the Corporation's
Form S-1 Registration Statement (File No.
333-74449), filed with the Commission on March
16, 1999, and incorporated herein by
reference).
4.2 Amended and Restated By-laws of The Goldman
Sachs Group, Inc. (filed as Exhibit 3.3 to
Amendment No. 2 (File No. 333-74449), filed
with the Commission on April 30, 1999,
relating to the Corporation's Form S-1
Registration Statement (File No. 333-74449),
filed with the Commission on March 16, 1999,
and incorporated herein by reference).
4.3 Goldman Sachs Employees' Profit Sharing
Retirement Income Plan.
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton
as to the legality of the issuance of the
common shares offered hereby.
15.1 Letter of PricewaterhouseCoopers LLP,
Independent Accountants, regarding unaudited
interim financial information.
23.1 Consent of Cleary, Gottlieb, Steen & Hamilton
(included in the opinion filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP,
Independent Accountants.
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at the time shall be deemed to be the
initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 24th day of
July, 2000.
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Robert J. Katz
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Name: Robert J. Katz
Title: Executive Vice President,
General Counsel and Secretary
to the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, the
trustees or other persons who administer the Plan in respect of the Plan has
duly caused this Registration Statement to be signed on its behalf, thereunto
duly authorized, in the City of New York, State of New York, on this 24th day of
July, 2000.
GOLDMAN SACHS EMPLOYEES' PROFIT
SHARING RETIREMENT INCOME PLAN
By: /s/ Robert D. Gottlieb
-------------------------------
Name: Robert D. Gottlieb
Title: Member of the
Administrative Committee
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John A. Thain, Robert J. Katz, Gregory K.
Palm, David A. Viniar and Esta E. Stecher and each of them severally, his or her
true and lawful attorney-in-fact with full power of substitution and
resubstitution to sign in his or her name, place and stead, in any and all
capacities, to do any and all things and execute any and all instruments that
such attorney may deem necessary or advisable under the Securities Act of 1933,
and any rules, regulations and requirements of the Securities and Exchange
Commission, including specifically, but without limiting the generality of the
foregoing, the power and authority to sign his or her name in his or her
respective capacity as a member of the Board of Directors or officer of the
Registrant, this Registration Statement, any and all amendments (including
post-effective amendments) to this Registration Statement and any other
documents filed with the Securities and Exchange Commission, as fully for all
intents and purposes as he or she might or could do in person, and hereby
ratifies and confirms all said attorneys-in-fact and agents, each acting alone,
and his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons in the capacities indicated:
<TABLE>
Title Signature Date
<S> <C> <C>
Director, Chairman of the Board /s/ Henry M. Paulson, Jr. July 18, 2000
and Chief Executive Officer ----------------------------- ----------------------
(Principal Executive Officer) Henry M. Paulson, Jr.
/s/ Robert J. Hurst July 18, 2000
Director and Vice Chairman ----------------------------- ----------------------
Robert J. Hurst
/s/ John A. Thain July 18, 2000
Director, President and Co-Chief ----------------------------- ----------------------
Operating Officer John A. Thain
/s/ John L. Thornton July 18, 2000
Director, President and Co-Chief ----------------------------- ----------------------
Operating Officer John L. Thornton
/s/ Sir John Browne July 18, 2000
Director ----------------------------- ----------------------
Sir John Browne
/s/ John H. Bryan July 18, 2000
Director ----------------------------- ----------------------
John H. Bryan
/s/ James A. Johnson July 18, 2000
Director ----------------------------- ----------------------
James A. Johnson
/s/ Ruth J. Simmons July 18, 2000
Director ----------------------------- ----------------------
Ruth J. Simmons
/s/ John L. Weinberg July 18, 2000
Director ----------------------------- ----------------------
John L. Weinberg
/s/ David A. Viniar July 18, 2000
Chief Financial Officer ----------------------------- ----------------------
(Principal Financial Officer) David A. Viniar
/s/ Sarah G. Smith July 18, 2000
Principal Accounting Officer ----------------------------- ----------------------
Sarah G. Smith
July 18, 2000
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<S> <C> <C> <C>
Exhibit No. Description Method of Filing Sequentially
----------- ----------- ---------------- ------------
Numbered Page
-------------
Location
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4.1 Amended and Restated Certificate of Filed as Exhibit 3.2 to Amendment No. 2 --
Incorporation of The Goldman Sachs Group, (File No. 333-74449), filed with the
Inc. Commission on April 30, 1999, relating
to the Corporation's Form S-1
Registration Statement (File No.
333-74449), filed with the Commission
on March 16, 1999, and incorporated
herein by reference
4.2 Amended and Restated By-laws of The Goldman Filed as Exhibit 3.3 to Amendment No. 2 --
Sachs Group, Inc. (File No. 333-74449), filed with the
Commission on April 30, 1999, relating
to the Corporation's Form S-1
Registration Statement (File No.
333-74449), filed with the Commission
on March 16, 1999, and incorporated
herein by reference
4.3 Goldman Sachs Employees' Profit Sharing Filed herewith 11
Retirement Income Plan.
5.1 Opinion of Cleary, Gottlieb, Steen & Filed herewith 102
Hamilton as to the legality of the issuance
of the common shares offered hereby.
15.1 Letter of PricewaterhouseCoopers LLP, Filed herewith 103
Independent Accountants, regarding
unaudited interim financial information.
23.1 Consent of Cleary, Gottlieb, Steen & Included in Exhibit 5.1 102
Hamilton.
23.2 Consent of PricewaterhouseCoopers LLP, Filed herewith 104
Independent Accountants.
24.1 Power of Attorney (included on signature Filed herewith 8
page).
</TABLE>
