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Exhibit 1.1
THE GOLDMAN SACHS GROUP, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
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August __, 2000
Goldman, Sachs & Co.,
Banc of America Securities LLC,
Bear, Stearns & Co. Inc.,
Chase Securities Inc.,
Credit Suisse First Boston Corporation,
Deutsche Bank Securities Inc.,
Donaldson, Lufkin & Jenrette Securities Corporation,
FleetBoston Robertson Stephens Inc.,
Lehman Brothers Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated,
PaineWebber Incorporated,
Prudential Securities Incorporated,
Salomon Smith Barney Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Certain stockholders of The Goldman Sachs Group, Inc., a Delaware
corporation ("the Company"), named in Schedule II hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 35,000,000 shares (the "Firm Shares") of common stock, par value
$.01 per share ("Stock"), of the Company and, at the election of the
Underwriters, up to 5,250,000 additional shares (the "Optional Shares") of
Stock. The Estate of Bernice Pauahi Bishop is joining in and consenting to the
sale of Stock by Kamehameha Activities Association, and for the purposes of
Sections 1(b) and
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(2), the introductory paragraph to Section 7, and Sections 7(h), 7(i), 7(p), 10,
11, 12, 13 and 16 and the first paragraph following Section 16 only, all
references to a Selling Stockholder shall include Kamehameha Activities
Association and the Estate of Bernice Pauahi Bishop, jointly as if they were one
Selling Stockholder. Without limiting the generality of the foregoing, the
Estate of Bernice Pauahi Bishop intends to and hereby agrees to sell, pursuant
to Section 2 hereof, all of its interest, if any, in the _________ shares of
Stock held of record by Kamehameha Activities Association to be sold pursuant to
this Agreement. The Firm Shares and the Optional Shares which the Underwriters
elect to purchase pursuant to Section 2 hereof are herein collectively called
the "Shares".
It is understood and agreed to by all parties that the Selling Stockholders
(including the Estate of Bernice Pauahi Bishop) are concurrently entering into
an agreement (the "Asia/Pacific Underwriting Agreement") providing for the sale
by the Selling Stockholders (including the Estate of Bernice Pauahi Bishop) of
up to a total of 1,150,000 shares of Stock (the "Asia/Pacific Shares"),
including the option to purchase additional shares thereunder, through
arrangements with certain underwriters in the Asia/Pacific Region (the
"Asia/Pacific Underwriters"), for whom Goldman Sachs (Asia) L.L.C., BOCI Asia
Limited, China Development Industrial Bank Inc., China International Capital
Corporation (Hong Kong) Limited, Daiwa Securities SB Capital Markets Hong Kong
Limited, The Development Bank of Singapore Ltd, HSBC Investment Bank Asia
Limited, Jardine Fleming Securities Limited, Kokusai Securities (Hong Kong)
Limited, Kotak Mahindra (International) Limited, The Nikko Merchant Bank
(Singapore) Limited, Nomura International (Hong Kong) Limited, Samsung
Securities Co., Ltd. and Were Stockbroking Limited are acting as lead managers,
and an agreement (the "International Underwriting Agreement") providing for the
sale by the Selling Stockholders (including the Estate of Bernice Pauahi Bishop)
of up to a total of 4,600,000 shares of Stock (the "International Shares"),
including the option to purchase additional shares thereunder, through
arrangements with certain underwriters outside the United States and Canada and
the Asia/Pacific Region (the "International Underwriters"), for whom Goldman
Sachs International, ABN AMRO Rothschild, Bayerische Hypo- und Vereinsbank AG,
Cazenove & Co., Commerzbank Aktiengesellschaft, Deutsche Bank AG London, ING
Barings Limited, as agent for ING Bank N.V., London Branch, Kleinwort Benson
Limited, MEDIOBANCA - Banca di Credito Finanziario S.p.A., Paribas, Societe
Generale and UBS AG, acting through its business group UBS Warburg, are acting
as lead managers. Anything herein or therein to the contrary notwithstanding,
the respective closings under this Agreement, the Asia/Pacific Underwriting
Agreement and the International Underwriting Agreement are hereby expressly made
conditional on one another. The Underwriters hereunder, the Asia/Pacific
Underwriters and the International Underwriters are simultaneously entering into
an Agreement among Underwriting Syndicates (the "Agreement among Syndicates")
which provides, among other things, that Goldman, Sachs & Co. shall act as
global coordinator for the offering of shares of Stock and for the transfer of
shares of Stock among the three syndicates.
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Except as the context may otherwise require, the Asia/Pacific Underwriters
and the International Underwriters are referred to herein collectively as the
"Global Underwriters" and the Asia/Pacific Underwriting Agreement and the
International Underwriting Agreement are referred to herein collectively as the
"Global Underwriting Agreements".
Three forms of prospectus are to be used in connection with the offering
and sale of shares of Stock contemplated by the foregoing, one relating to the
Shares hereunder (the "U.S. Prospectus"), one relating to the Asia/Pacific
Shares and another relating to the International Shares. The other two forms of
prospectus will be identical to the U.S. Prospectus except for the front cover
page, the back cover page, the text under the caption "Underwriting" and for the
addition of a section captioned "Certain United States Tax Consequences to
Non-U.S. Holders of Common Stock". Except as used in Sections 2, 3, 4, 9 and 11
herein, and except as the context may otherwise require, references hereinafter
to the Shares shall include all the shares of Stock which may be sold pursuant
to either this Agreement, the Asia/Pacific Underwriting Agreement or the
International Underwriting Agreement, and references herein to any prospectus
whether in preliminary or final form, and whether as amended or supplemented,
shall include the U.S., the Asia/Pacific and the International versions thereof.
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-40810) and an
Amendment No. 1 thereto (the "Initial Registration Statement") in respect
of the Shares have been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to you for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became or will become effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore been
filed with the Commission; and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information
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contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared effective and
(ii) the documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time such
part of the Initial Registration Statement became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the
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statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein or by a
Selling Stockholder expressly for use in the preparation of the answers
therein to Item 7 of Form S-3;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects, to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Goldman, Sachs & Co. expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the
answers therein to Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries (the "Significant
Subsidiaries") that are listed in Exhibit 21.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended November 26, 1999 (the "1999
Annual Report") has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus as amended or
supplemented, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of
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operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented;
(vi) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(vii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; the Company has been
duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; each
corporate subsidiary of the Company that is a Significant Subsidiary (a
"Corporate Significant Subsidiary"), each partnership subsidiary of the
Company in which the Company or one of its subsidiaries is a general
partner that is a Significant Subsidiary (a "Partnership Significant
Subsidiary"), each unlimited liability company subsidiary of the Company
that is a Significant Subsidiary (a "ULLC Significant Subsidiary") and each
limited liability company in which the Company or one of its subsidiaries
is a managing member that is a Significant Subsidiary (an "LLC Significant
Subsidiary") has been duly incorporated or organized, as the case may be,
and is validly existing as a corporation, partnership, unlimited liability
company or limited liability company, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or organization, as the
case may be, with the power (corporate, partnership, unlimited liability
company or limited liability company, as the case may be) and authority to
own its properties and conduct its business as described in the Prospectus;
(viii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company, including the Shares, have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the description of
the capital stock contained in the Prospectus; all of the issued shares of
capital stock of each Corporate Significant Subsidiary, all of the issued
shares of each ULLC Significant Subsidiary and all of the membership
interests in each LLC Significant Subsidiary have been duly and
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validly authorized and issued, are fully paid and, in the case of any
Corporate Significant Subsidiaries and LLC Significant Subsidiaries, are
non-assessable and (except for (A) directors' qualifying shares and (B) 50%
of the interests in Goldman Sachs Holdings L.L.C.) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; and all of the partnership interests in each
Partnership Significant Subsidiary have been duly and validly created and
(except for interests in Goldman Sachs Mitsui Marine Derivative Products,
L.P.) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(ix) The compliance by the Company with all of the provisions of this
Agreement and the Global Underwriting Agreements and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or the organizational documents of any of its
Significant Subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required to be
obtained or made by the Company for the sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement and the Global Underwriting Agreements, except the registration
under the Act of the Shares, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the Global Underwriters;
(x) Neither the Company nor any of its Significant Subsidiaries is in
violation of its organizational documents or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(xi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the securities described therein, in the
Asia/Pacific and International versions of the Prospectus under the caption
"Certain United States Tax Consequences to Non-U.S. Holders of Common
Stock" and in the Prospectus
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under the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(xii) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xiii) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(xiv) The Company and its Significant Subsidiaries possess all
concessions, permits, licenses, consents, exceptions, franchises,
authorizations, orders, registrations and qualifications issued by the
appropriate Federal, state and foreign governments, governmental or
regulatory authorities, self-regulatory organizations and all courts or
other tribunals, and are members in good standing of each Federal, state or
foreign exchange, board of trade, clearing house or association and
self-regulatory or similar organization necessary to conduct their
respective businesses as described in the Prospectus, except as would not,
individually or in the aggregate, have a material adverse effect on the
prospects, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole; and
(xv) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any other person is required for the
execution and delivery of this Agreement, the Global Underwriting
Agreements, the Power of Attorney and the Custody Agreement, in each case,
referred to in clause (viii) below, the sale of the Shares to be sold by
such Selling Stockholder or the consummation by such Selling Stockholder of
the transactions contemplated by this Agreement, the Global Underwriting
Agreements, the Power of Attorney or the
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Custody Agreement, except that (A) such Selling Stockholder may need to
file an amendment to any report on Schedule 13D relating to the Company
previously filed by such Selling Stockholder, (B) such Selling Stockholder
will need a waiver of the transfer restrictions under the Shareholders'
Agreement, dated as of May 7, 1999 (the "Shareholders' Agreement"), among
the Company and the Covered Persons listed therein, the Owner Agreements,
dated as of July 11, 1999, and the Owner Agreements, dated as of September
24, 1999 (collectively, the "Hull Owner Agreements"), between the Company
and certain former owners of Hull and Associates, L.L.C. and M. Blair Hull,
Inc. and/or the Plan of Incorporation of The Goldman Sachs Group, L.P.,
("Group L.P.") approved by the Schedule II Limited Partners thereto on
March 8, 1999 (the "Plan of Incorporation"), which waiver will be in full
force and effect at each Time of Delivery (as defined in Section 4 hereof)
and (C) such Selling Stockholder may be obligated to apply the proceeds of
the sale of the Shares to repay certain indebtedness of such Selling
Stockholder, which payment, if required, will be made at the applicable
Time of Delivery, and except the registration under the Act of such Shares,
which has been made, and such as may be required under state securities or
Blue Sky laws, which consents, approvals, authorizations, orders and
filings are the only consents, approvals, authorizations, orders and
filings necessary for the execution and delivery by such Selling
Stockholder of this Agreement, the Global Underwriting Agreements, the
Power of Attorney and the Custody Agreement and for the sale and delivery
of the Shares to be sold by such Selling Stockholder hereunder and under
the Global Underwriting Agreements, and such Selling Stockholder has full
right, power and authority to enter into this Agreement, the Global
Underwriting Agreements, the Power of Attorney and the Custody Agreement
and to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder and under the Global Underwriting Agreements;
(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and under the Global Underwriting Agreements and the compliance
by such Selling Stockholder with all of the provisions of this Agreement,
the Global Underwriting Agreements, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound, or to which any of the property or assets of
such Selling Stockholder is subject, except that (A) such Selling
Stockholder will need a waiver of the transfer restrictions under the
Shareholders' Agreement, the Hull Owner Agreements or the Plan of
Incorporation, which waiver will be in full force and effect at each Time
of Delivery; nor will such action result in any violation of the provisions
of the certificate of incorporation, by-laws or other organizational or
constituent documents of such Selling Stockholder or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction
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over such Selling Stockholder or the property of such Selling Stockholder
and (B) such Selling Stockholder may be obligated to apply the proceeds of
the sale of the Shares to repay certain indebtedness of such Selling
Stockholder, which payment, if required, will be made at the applicable
Time of Delivery;
(iii) Such Selling Stockholder has, and immediately prior to the Time
of Delivery such Selling Stockholder will have, good and valid title to the
Shares to be sold by such Selling Stockholder hereunder and under the
Global Underwriting Agreements, free and clear of all liens, encumbrances,
equities or claims, except that (A) such Selling Shareholder will need a
waiver of the transfer restrictions under the Shareholders' Agreement, the
Hull Owner Agreements and/or the Plan of Incorporation, which waiver will
be in full force and effect at each Time of Delivery; and, upon delivery of
such Shares and payment therefor pursuant hereto and thereto, good and
valid title to such Shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several Underwriters or the Global
Underwriters, as the case may be and (B) such Selling Stockholder may be
obligated to apply the proceeds from the sale of the Shares to repay
certain indebtedness of such Selling Stockholder, which payment, if
required, will be made at the applicable Time of Delivery;
(iv) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(v) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
the First Time of Delivery (as defined in Section 4 hereof) a properly
completed and executed United States Treasury Department Form W- 8BEN,
W-8IMY or W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Stockholder expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be,
will, conform in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and did not and will
not contain any untrue statement of a material fact or omit to
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state any material fact required to be stated therein or necessary to make
the statements therein not misleading;
(vii) The Shares to be sold by such Selling Stockholder hereunder have
been placed in custody under a Custody Agreement, Domestic Custody
Agreement, together with Instructions of an Authorized Person or Custody
Agreement and Documented Approval, in each case, in the form heretofore
furnished to you (the "Custody Agreement"), duly executed and delivered by
such Selling Stockholder to The Chase Manhattan Bank, as custodian (the
"Custodian"), and such Selling Stockholder has duly executed and delivered
a Power of Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and
each of them, as such Selling Stockholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to (unless such Selling Stockholder is
Sumitomo Bank Capital Markets, Inc. or Kamehameha Activities Association
(jointly with the Estate of Bernice Pauahi Bishop)) determine the purchase
price per share for purposes of Section 2(a) of this Agreement, to (unless
such Selling Stockholder is Sumitomo Bank Capital Markets, Inc. or
Kamehameha Activities Association (jointly with the Estate of Bernice
Pauahi Bishop)) execute and deliver this Agreement and the Global
Underwriting Agreements on behalf of such Selling Stockholder, to authorize
the delivery of the Shares to be sold by such Selling Stockholder hereunder
and otherwise to act on behalf of such Selling Stockholder in connection
with the transactions contemplated by this Agreement, the Global
Underwriting Agreements and the Custody Agreement; and
(viii) The Shares held in custody for such Selling Stockholder under
the Custody Agreement are subject to the interests of the Underwriters
under this Agreement and the Global Underwriting Agreements; the
arrangements made by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Attorneys-in-Fact by the
Power of Attorney, are to that extent irrevocable; the obligations of the
Selling Stockholders hereunder shall not be terminated by operation of law,
whether by the death, disability, incompetency or incapacity of any
individual Selling Stockholder or, in the case of an estate or trust, by
the death, disability, incompetency or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if any individual
Selling Stockholder 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 partnership or corporation should be
dissolved, or if any other such event should occur, before the delivery of
the Shares hereunder, the Shares shall be delivered by or on behalf of the
Selling Stockholders in accordance with the terms and conditions of this
Agreement, the Global Underwriting Agreements and the Custody Agreement;
and actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, disability, incompetency,
incapacity, termination, dissolution or other event
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had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, disability, incompetency, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, (a) each of the
Selling Stockholders, severally and not jointly (except that Kamehameha
Activities Association and the Estate of Bernice Pauahi Bishop are acting
jointly), agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from each of the
Selling Stockholders, at the purchase price per share of $[ ], the number of
Firm Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Firm Shares to be sold by each
of the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all of the Underwriters
from all of the Selling Stockholders hereunder and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Selling Stockholders agree, as and to the extent
indicated in Schedule II hereto, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Selling Stockholders, as and to the extent
indicated in Schedule II hereto, at the purchase price per share set forth in
clause (a) of this Section 2, that portion of the number of Optional Shares as
to which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder. The Selling Stockholders, as and to the extent indicated
in Schedule II hereto, hereby grant, severally and not jointly, to the
Underwriters the right to purchase at their election up to 5,250,000 Optional
Shares, at the purchase price per share set forth in the paragraph above, for
the sole purpose of covering overallotments in the sale of the Firm Shares. Any
such election to purchase Optional Shares shall be made in proportion to the
Optional Shares to be sold by each Selling Stockholder. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Attorneys-in-Fact, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery or,
unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
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4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Selling Stockholders shall be delivered by or on behalf of the
Selling Stockholders to Goldman, Sachs & Co., including, at the option of
Goldman, Sachs & Co., through the facilities of The Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified to Goldman, Sachs & Co. by the
Custodian upon at least forty-eight hours' prior notice. Kamehameha Activities
Association and the Estate of Bernice Pauahi Bishop agree that Kamehameha
Activities Association will receive payment for the Shares to be sold jointly by
them. The Selling Stockholders will cause the certificates representing the
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery at the office of Goldman, Sachs & Co., 85
Broad Street, New York, New York 10004 or at the office of DTC or its designated
custodian, as the case may be (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York City time, on [ ], 2000 or such other time and date as Goldman,
Sachs & Co. and the Selling Stockholders may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York City time, on the date
specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs
& Co. of the Underwriters' election to purchase such Optional Shares, or such
other time and date as Goldman, Sachs & Co. and the Selling Stockholders may
agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "First Time of Delivery", such time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(p) hereof, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, N.Y. 10004 (the "Closing Location"), and
the Shares will be delivered at the Designated Office, all at each Time of
Delivery. A meeting will be held at the Closing Location at 2:30 p.m., New York
City time, on the second New York Business Day next preceding each Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to the last Time of
Delivery (other than any amendment or supplement effected through the filing of
a report under the Exchange Act) which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof; to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; to advise you, promptly
after it receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus, of the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction; and to comply with all applicable securities and other laws, rules
and regulations in each such jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City in such quantities
as you may reasonably request, and, if the delivery of a prospectus is required
at any time prior to the expiration of nine months after the time of issue of
the Prospectus in connection with the offering or sale of the Shares and if at
such time any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements
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<PAGE> 15
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the Prospectus,
to notify you and upon your request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance, and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the Shares at any
time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158
under the Act);
(e) During the period beginning from the date hereof and continuing to and
including the date 180 days after the date of the Prospectus, not to, directly
or indirectly, offer, sell, contract to sell or otherwise dispose of, including,
without limitation, through the entry into a cash-settled derivative instrument,
any shares of Stock or any securities of the Company that are substantially
similar to Stock, including but not limited to any securities that are
convertible into or exercisable or exchangeable for, or that represent the right
to receive, Stock or any such substantially similar securities, without the
prior written consent of Goldman, Sachs & Co.; provided, however, that the
Company may (i) offer and sell Stock and such other substantially similar
securities for the account of stockholders, and (ii) offer, sell, contract to
sell and otherwise dispose of Stock and such other substantially similar
securities (A) pursuant to employee benefit plans and employment contracts and
agreements, (B) upon conversion or exchange of convertible or exchangeable
securities and (C) in connection with a merger, consolidation, share exchange or
other business combination or the acquisition of a business or other assets
(tangible or intangible);
(f) To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), to make available to its stockholders consolidated
summary financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
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<PAGE> 16
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders generally, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission); and
(h) If the Company elects to rely upon Rule 462(b) under the Act, to file a
Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and
at the time of filing to either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or to give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company and each of the Selling Stockholders, jointly and severally,
covenant and agree with one another and with the several Underwriters that (a)
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Global Underwriting
Agreements, the Agreement among Syndicates, the Selling Agreements, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof; (iv) all
fees and expenses in connection with listing the Shares on the New York Stock
Exchange; (v) the filing fees incident to, and the fees and disbursements of
counsel in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(vi) the cost of preparing stock certificates; (vii) the cost and charges of any
transfer agent or registrar; (viii) the fees and expenses of the
Attorneys-in-Fact and Custodian and (ix) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; and (b) such Selling Stockholder will
pay or cause to be paid (i) any fees and expenses of counsel for such Selling
Stockholder and (ii) all transfer taxes incident to the sale and delivery of the
Shares to be sold by such Selling Stockholder to the Underwriters hereunder. In
connection with clause (b)(ii) of the preceding sentence, Goldman, Sachs & Co.
agrees to pay New York State stock transfer tax, and the Selling Stockholder
agrees to reimburse Goldman, Sachs & Co. for associated carrying costs if
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<PAGE> 17
such tax payment is not rebated on the day of payment and for any portion of
such tax payment not rebated. It is understood, however, that the Company shall
bear, and the Selling Stockholders shall not be required to pay or to reimburse
the Company for, the cost of any other matters not directly relating to the sale
and purchase of the Shares pursuant to this Agreement, and that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The respective obligations of the several Underwriters hereunder, as to
the Shares to be delivered at each Time of Delivery, shall be subject, in the
discretion of the Underwriters, to the condition that all representations and
warranties and other statements of the Company and of the Selling Stockholders
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholders shall have performed all of its
and their obligations hereunder theretofore to be performed and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
if the Company has elected to rely upon Rule 462(b) under the Act, the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the reasonable
satisfaction of the Underwriters;
(b) Cleary, Gottlieb, Steen & Hamilton, counsel for the Underwriters, shall
have furnished to you such written opinions and letter (a draft of such opinion
and letter is attached as Annex II(a) hereto), dated such Time of Delivery, to
the effect that the matters set forth in the Asia/Pacific and International
versions of the Prospectus under the caption "Certain United States Tax
Consequences to Non-U.S. Holders of Common Stock", insofar as they purport to
describe the provisions of the laws referred to therein, are accurate, complete
and fair and with respect to the matters set forth in paragraphs (i), (ii), (v),
(viii) and (ix) of subsection (d) below as well as such other related matters as
you may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Sullivan & Cromwell, counsel for the Company, shall have furnished to
you their written opinion (a draft of such opinion is attached as Annex II(b)
hereto), dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
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<PAGE> 18
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware;
(ii) All of the outstanding shares of Stock, including the Shares,
have been duly authorized and validly issued and are fully paid and
nonassessable;
(iii) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of
the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware for the sale of the Shares by the
Selling Stockholders to the Underwriters have been obtained or made;
(iv) The performance by the Company of its obligations under the
Underwriting Agreement and the Global Underwriting Agreements will not (a)
violate the Certificate of Incorporation or By-laws of the Company, (b)
result in a default under or breach of the agreements listed in Part IV,
Item 14(a), Exhibit Numbers 2.1, 4.1, 10.1 through 10.21, inclusive, or
10.25 through 10.45, inclusive, of the 1999 Annual Report or Exhibits 10.1
through 10.5, inclusive, of the Form 10-Q for the quarter ended May 26,
2000 filed by the Company with the Commission or Exhibit 4.3 of the
Registration Statement, (c) violate any court orders listed in the
Officer's Certificate of Robert J. Katz, General Counsel of the Company, or
(d) violate any Federal law of the United States or law of the State of New
York applicable to the Company; provided, however, that for purposes of
this paragraph (iv), such counsel may state that they express no opinion
with respect to Federal or state securities laws, other antifraud laws and
fraudulent transfer laws; provided, further, that such counsel may also
state that insofar as performance by the Company of its obligations under
the Underwriting Agreement and the Global Underwriting Agreements is
concerned, they are expressing no opinion as to bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
relating to or affecting creditors' rights;
(v) This Agreement and the Global Underwriting Agreements have been
duly authorized, executed and delivered by the Company; and
(vi) The Company is not an "investment company", as such term is
defined in the Investment Company Act.
Such counsel shall also furnish you with a letter to the effect that, as
counsel to the Company, they reviewed the Registration Statement and the
Prospectus, participated in discussions with your representatives and those of
the Company and its accountants and advised the Company as to the requirements
of the Act and the applicable rules and regulations thereunder; between the date
of the Prospectus and such Time of Delivery, such counsel participated in
further discussions with your representatives and those of the Company and its
accountants in which the contents of certain portions of the Prospectus
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<PAGE> 19
and related matters were discussed and reviewed certain certificates of certain
officers of the Company, an opinion and letter addressed to you from Gregory K.
Palm, Esq. and a letter addressed to you from the Company's independent
accountants; on the basis of the information that such counsel gained in the
course of the performance of the services referred to above, considered in the
light of such counsel's understanding of the applicable law and the experience
such counsel have gained through their practice under the Act, they will confirm
to you that, in such counsel's opinion, the Registration Statement and the
Prospectus, as of the effective date of the Registration Statement, appeared on
their face to be appropriately responsive in all material respects to the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder; nothing that came to such counsel's attention in the
course of such review has caused such counsel to believe that the Registration
Statement, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; nothing that
came to the attention of such counsel in the course of the procedures described
in the second clause of this paragraph has caused such counsel to believe that
the Prospectus, as of its date or as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; such
counsel may state that the limitations inherent in the independent verification
of factual matters and the character of determinations involved in the
registration process are such that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the captions "Description of Capital Stock" and "Underwriting" in the
Prospectus insofar as they relate to provisions of documents therein described
and those made under the caption "Certain United States Tax Consequences to
Non-U.S. Holders of Common Stock" in the Asia/Pacific and International versions
of the Prospectus insofar as they relate to provisions of U.S. Federal tax law
therein described; also, such counsel need express no opinion or belief as to
the financial statements or other financial data derived from accounting records
contained in the Registration Statement or the Prospectus; finally, such counsel
may assume that any Rule 462(b) Registration Statement was filed with the
Commission prior to the time that any confirmations of the sale of any of the
Shares were sent or given to investors. In addition, such counsel shall state
that they do not know of any litigation instituted or threatened against the
Company that would be required to be disclosed in the Prospectus that is not so
disclosed, provided, that such counsel may also state that they call to your
attention that the Company has an internal legal department and that while such
counsel represents the Company and its affiliates on a regular basis, such
counsel's engagement has been limited to specific matters as to which it was
consulted and, accordingly, such counsel's knowledge with respect to litigation
instituted or threatened against the Company is limited; and that they do not
know of any documents that are required to be filed as exhibits to the
Registration Statement that are not so filed.
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<PAGE> 20
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied upon certificates of officers
of the general partner of Group L.P. and of the Company and its subsidiaries,
certificates of public officials and other sources believed by such counsel to
be responsible;
(d) Gregory K. Palm, Esq., a General Counsel for the Company, shall have
furnished to you his written opinion (a draft of such opinion is attached as
Annex II(c) hereto), dated such Time of Delivery, in form and substance
satisfactory to you to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares being delivered at such Time of Delivery) have been
duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) Each of Goldman, Sachs & Co. and J. Aron & Company has been duly
organized and is validly existing as a limited partnership and general
partnership, respectively, in good standing under the laws of its
jurisdiction of formation; and the general partnership interests in
Goldman, Sachs & Co. and in J. Aron & Company have been duly and validly
created and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of officers of
the Company or its subsidiaries, provided that such counsel shall state
that he believes that you and he are justified in relying upon such
opinions and certificates);
(iv) To the best of such counsel's knowledge and other than as set
forth in the Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which is reasonably likely to individually
or in the aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
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<PAGE> 21
(v) This Agreement and the Global Underwriting Agreements have been
duly authorized, executed and delivered by the Company;
(vi) The sale of the Shares being delivered at such Time of Delivery
and the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; provided, however, that, for the purposes of this paragraph
(vi), such counsel need not express any opinion with respect to Federal or
state securities laws, other antifraud laws, and fraudulent transfer laws;
provided, further, that insofar as the compliance by the Company with all
of the provisions of this Agreement and the Global Underwriting Agreements
and the consummation of the transactions herein and therein contemplated
are concerned, such counsel need not express any opinion as to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights;
(vii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States of America or the State of New York is required to be
obtained or made by the Company for the sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement and the Global Underwriting Agreements, except the registration
under the Act of the Shares, which has been made, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters and the Global
Underwriters;
(viii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the securities described therein, and under the
caption "Underwriting", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate, complete and
fair;
(ix) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time
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of Delivery (other than the financial statements and related schedules
therein and other financial data derived from the Company's accounting
records, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder; although he does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsections (ii) and (viii) of this Section
7(d), he has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial statements and
related schedules therein and other financial data derived from the
Company's accounting records, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements
and related schedules therein and other financial data derived from the
Company's accounting records, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or that, as of
such Time of Delivery, either the Registration Statement or the Prospectus
or any further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein and other financial data derived from the Company's
accounting records, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and he does not
know of any amendment to the Registration Statement required to be filed or
of any contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required. Such counsel may state
that he assumes that any Rule 462(b) Registration Statement was filed with
the Commission prior to the time that any confirmations of the sale of any
of the Shares were sent or given to investors.
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware. Such counsel may also state that, insofar as such
opinion involves factual matters, he has relied upon certificates of officers of
the general partner of Group L.P. and of the Company and its subsidiaries and
certificates of public officials and other sources believed by such counsel to
be responsible. In addition, such counsel may state that he has examined, or has
caused members of the Company's legal department to examine, such partnership
records, certificates and other documents, and such questions of law, as he has
considered necessary or appropriate for the purposes of such opinion;
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(e) Linklaters & Paines, United Kingdom counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(d) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Goldman Sachs International has been duly incorporated and is
validly existing as a private unlimited company in good standing under the
laws of England; and
(ii) All of the issued shares of Goldman Sachs International have been
duly and validly authorized and issued, are fully paid, and are owned by
Goldman Sachs Holdings (U.K.), Goldman Sachs Investments Europe and Goldman
Sachs (U.K.) L.L.C., which are themselves indirectly owned by the Company,
free and clear from all liens, encumbrances, equities or claims.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the Companies Act of
England. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied upon certificates of officers of the Company
and certificates of public officials and other sources believed by such counsel
to be responsible;
(f) Cravath, Swaine & Moore, special counsel to Sumitomo Bank Capital
Markets, Inc., as indicated in Schedule II hereto, shall have furnished to you
their written opinion (a draft of such opinion is attached as Annex II(e)
hereto) dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) This Agreement and the Global Underwriting Agreements have been
duly authorized, executed and delivered by or on behalf of such Selling
Stockholder;
(ii) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement and the Global
Underwriting Agreements in connection with the Shares to be sold by such
Selling Stockholder hereunder or thereunder, except the registration under
the Act of the Shares, which has been duly obtained and is in full force
and effect, the filing of an amendment to such Selling Stockholder's
Schedule 13D with respect to the Company and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters or the Global Underwriters;
(iii) Good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to each of
the several Underwriters or Global Underwriters, as the case may be, who
have purchased such Shares in good faith and without notice of any such
lien, encumbrance, equity
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<PAGE> 24
or claim or any other adverse claim within the meaning of the Uniform
Commercial Code; and
(iv) A Power of Attorney and Custody Agreement have been duly executed
and delivered by such Selling Stockholder and constitute valid and binding
agreements of such Selling Stockholder in accordance with their terms.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware;
(g) Robert A. Rabbino, counsel to Sumitomo Bank Capital Markets, Inc., as
indicated in Schedule II hereto, shall have furnished to you his written opinion
(a draft of such opinion is attached as Annex II(f) hereto) dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The sale of the Shares to be sold by such Selling Stockholder
hereunder and under the Global Underwriting Agreements and the compliance
by such Selling Stockholder with all of the provisions of this Agreement,
the Global Underwriting Agreements, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound, or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the organizational documents of such Selling
Stockholder or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
(ii) Immediately prior to such Time of Delivery such Selling
Stockholder had good and valid title to the Shares to be sold at such Time
of Delivery by such Selling Stockholder under this Agreement and the Global
Underwriting Agreements, free and clear of all liens, encumbrances,
equities or claims, and full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder and thereunder; and
(iii) A Power of Attorney and Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute valid and
binding agreements of such Selling Stockholder in accordance with their
terms.
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States, the laws of
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<PAGE> 25
the State of New York and the General Corporation Law of the State of Delaware
and in rendering the opinion in subparagraph (ii) such counsel may rely upon a
certificate of such Selling Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or claims on the Shares sold by
such Selling Stockholder, provided that such counsel shall state that he
believes that you and he are justified in relying upon such certificate;
(h) Cravath, Swaine & Moore, special counsel for Kamehameha Activities
Association and the Estate of Bernice Pauahi Bishop, acting jointly as if they
were one Selling Stockholder, as indicated in Schedule II hereto, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(g) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) This Agreement and the Global Underwriting Agreements have been
duly executed and delivered by or on behalf of such Selling Stockholder;
(ii) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement and the Global
Underwriting Agreements in connection with the Shares to be sold by such
Selling Stockholder hereunder or thereunder, except the registration under
the Act of such Shares, which has been duly obtained and is in full force
and effect, the filing of an amendment to such Selling Stockholder's
Schedule 13D and such as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of such Shares by the
Underwriters or the Global Underwriters;
(iii) Good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to each of
the several Underwriters or Global Underwriters, as the case may be, who
have purchased such Shares in good faith and without notice of any such
lien, encumbrance, equity or claim or any other adverse claim within the
meaning of the Uniform Commercial Code; and
(iv) A Power of Attorney and Custody Agreement have been duly executed
and delivered by such Selling Stockholder and constitute valid and binding
agreements of such Selling Stockholder in accordance with their terms.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States and the laws of the State of New York. Such counsel may also state
that as to matters of law of the State of Hawaii, such counsel has relied on the
opinion to you referred to in Section 7(i) below;
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<PAGE> 26
(i) _____________________, counsel for Kamehameha Activities Association
and the Estate of Bernice Pauahi Bishop, acting jointly as if they were one
Selling Stockholder, as indicated in Schedule II hereto, shall have furnished to
you their written opinion (a draft of such opinion is attached as Annex II(h)
hereto), dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) This Agreement and the Global Underwriting Agreements have been
duly authorized, executed and delivered by or on behalf of such Selling
Stockholder; and the sale of the Shares to be sold by such Selling
Stockholder hereunder and thereunder and the compliance by such Selling
Stockholder with all of the provisions of this Agreement, the Global
Underwriting Agreements, the Power of Attorney and the Custody Agreement
and the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of the terms or
provisions of, or constitute a default under, (i) the organizational or
constituent documents of the Selling Stockholder, (ii) any statute, rule or
regulation of any Hawaii governmental agency or body having jurisdiction
over the Selling Stockholder or the property of the Selling Stockholder,
(iii) to such counsel's knowledge, after due inquiry of the Selling
Stockholder, any order of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property of the Selling
Stockholder, or (iv) any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which Kamehameha Activities Association
is a party or by which Kamehameha Activities Association is bound, or to
which any of the property or assets of Kamehameha Activities Association is
subject as identified to such counsel by an officer of Kamehameha
Activities Association as being all agreements or instruments that relate
to over $1,000,000 of indebtedness or contain any limitation or restriction
on transfers of securities by Kamehameha Activities Association;
(ii) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement and the Global
Underwriting Agreements to be taken by the Selling Stockholder in
connection with the Shares to be sold by such Selling Stockholder hereunder
or thereunder, except such as may be required under Hawaii securities or
Blue Sky laws in connection with the purchase and distribution of such
Shares by the Underwriters or the Global Underwriters;
(iii) Immediately prior to the sale of the Shares to be sold by such
Selling Stockholder under this Agreement and the Global Underwriting
Agreements, such Selling Stockholder was the record and beneficial owner of
the Shares to be sold at such Time of Delivery by such Selling Stockholder
under this Agreement and the Global Underwriting Agreements, free and
clear, to such counsel's knowledge, of adverse claims;
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<PAGE> 27
(iv) Assuming that the Shares to be sold by such Selling Stockholder
and the certificate(s) therefor have been delivered to the several U.S.
Underwriters, International Underwriters or Asia/Pacific Underwriters, as
the case may be, registered in the names of such Underwriters (upon
registration of transfer), or indorsed to such Underwriters or in blank,
and such Underwriters acquire their interests in such Shares without notice
of any adverse claim (within the meaning of section 8-105 of the Uniform
Commercial Code), such Underwriters will acquire record and beneficial
ownership of such Shares free and clear of adverse claims;
(v) Such Selling Stockholder has the power and authority to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Stockholder under this Agreement and the Global Underwriting Agreements;
and
(vi) A Power of Attorney and Custody Agreement have been duly executed
and delivered by such Selling Stockholder and constitute valid and binding
instruments of such Selling Stockholder in accordance with their terms
subject to revocation upon written notice.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the State of
Hawaii and in rendering the opinion in subparagraph (iii) such counsel may rely
upon a certificate of such Selling Stockholder in respect of matters of fact as
to ownership of, and liens, encumbrances, equities or claims on the Shares sold
by such Selling Stockholder, provided that such counsel shall state that they
believe that you and they are justified in relying upon such certificate. In
addition, such counsel may also state that as to all matters of the laws of the
State of New York, such counsel is relying on the opinion to you referred to in
Section 7(h) hereof;
(j) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, PricewaterhouseCoopers
LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, to the effect
set forth in Annex I hereto (the executed copy of the letter delivered prior to
the execution of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(k) (i) Neither the Company nor any of its Significant Subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or
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contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented there shall not have been any change in the capital stock or
long-term debt of the Company or any of its Significant Subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(l) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(m) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(n) The Shares to be sold by the Selling Stockholders at such Time of
Delivery shall have been duly listed on the New York Stock Exchange;
(o) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(p) The Company shall have furnished or caused to be furnished to you, and
the Selling Stockholders shall have furnished to you, at such Time of Delivery,
certificates of officers of the Company and of the Selling Stockholders,
respectively, satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders, respectively, herein at
and as of such Time of Delivery, as to the performance by the Company and the
Selling Stockholders of all of their respective
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obligations hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (k) of this Section, and as to such other matters
as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use therein.
(b) Each Selling Stockholder, severally and not jointly, will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein;
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that such
Selling Stockholder shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any
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Underwriter through Goldman, Sachs & Co. expressly for use therein; provided,
further, that the liability of a Selling Stockholder pursuant to this subsection
(b) shall not exceed the amount of net proceeds received by such Selling
Stockholder from the sale of its Shares pursuant to this Agreement. For purposes
of this Section 8(b), written information furnished to GS Inc. by Kamehameha
Activities Association expressly for use in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
shall be deemed to include any written information furnished to GS Inc. by the
Estate of Bernice Pauahi Bishop for use in any of the foregoing.
(c) Each Underwriter will indemnify and hold harmless the Company and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Goldman, Sachs & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the
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settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought under this Section 8 (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(e) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders taken together on the one
hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholders taken
together on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus, and for purposes of the allocation of benefits under this sentence
the Company shall be deemed to have received all of the benefits received by the
Selling Stockholders. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholders on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, each of the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (e) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e)
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<PAGE> 32
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and no Selling
Stockholder shall be required to contribute an amount that, together with any
other payments made pursuant to this Section 8, exceeds the net proceeds
received by such Selling Stockholder from the sale of its Shares pursuant to
this Agreement. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company or any Selling Stockholder within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Selling Stockholders shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholders shall have the right to postpone a Time
of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
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(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholders shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company
and the Selling Stockholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
Anything herein to the contrary notwithstanding, the indemnity agreements
of the Company in subsection (a) of Section 8 hereof, the representations and
warranties in subsections (a)(ii), (a)(iii) and (a)(iv) of Section 1 hereof and
any representation or warranty as to the accuracy of the Registration Statement
or the Prospectus contained in any certificate furnished by the Company pursuant
to Section 7 hereof, insofar as they may constitute a basis for indemnification
for liabilities (other than payment by the Company of expenses incurred or paid
in the successful defense of any action, suit or proceeding) arising under the
Act, shall not extend to the extent of any interest therein of a controlling
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<PAGE> 34
person of an Underwriter who is a director or officer who signed the
Registration Statement or controlling person of the Company when the
Registration Statement has become effective, except in each case to the extent
that an interest of such character shall have been determined by a court of
appropriate jurisdiction as not against public policy as expressed in the Act.
Unless in the opinion of counsel for the Company the matter has been settled by
controlling precedent, the Company will, if a claim for such indemnification is
asserted, submit to a court of appropriate jurisdiction the question of whether
such interest is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
none of the Company or the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 32 Old Slip, 9th Floor, New York, New York 10004, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to such Selling Stockholder at its address set
forth in Schedule II hereto; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(d) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
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<PAGE> 35
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us [ten] counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Stockholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
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<PAGE> 36
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
The Goldman Sachs Group, Inc.
By:
Name:
Title:
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<PAGE> 37
Sumitomo Bank Capital Markets, Inc.
By:
Name:
Title:
Kamehameha Activities Association
By:
Name:
Title:
The Trustees of the Estate of Bernice Pauahi
Bishop
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<PAGE> 38
[List Other Selling Stockholders]
By:
Attorney-in-Fact
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<PAGE> 39
Accepted as of the date hereof:
Goldman, Sachs & Co.
-----------------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
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<PAGE> 40
SCHEDULE I
<TABLE>
<CAPTION>
Number of
Optional Shares
Total Number to be Purchased
of Firm Shares if Maximum
Underwriter to be Purchased Option Exercised
--------------- -----------------
<S> <C> <C>
Goldman, Sachs & Co...................................................
Banc of America Securities LLC .......................................
Bear Stearns & Co. Inc. ..............................................
Chase Securities Inc. ................................................
Credit Suisse First Boston Corporation ...............................
Deutsche Bank Securities Inc. ........................................
Donaldson, Lufkin & Jenrette Securities Corporation ..................
FleetBoston Robertson Stephens Inc. ..................................
Lehman Brothers Inc. .................................................
Merrill Lynch, Pierce, Fenner & Smith Incorporated ...................
J.P. Morgan Securities Inc. ..........................................
Morgan Stanley & Co. Incorporated ....................................
PaineWebber Incorporated .............................................
Prudential Securities Incorporated ...................................
Salomon Smith Barney Inc. ............................................
---------- ----------
Total........................................................ 35,000,000 5,250,000
========== ==========
</TABLE>
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<PAGE> 41
SCHEDULE II
<TABLE>
<CAPTION>
Number of
Optional Shares
Total Number to be Sold if
of Shares Maximum Option
to be Sold Exercised
------------ -----------------
<S> <C> <C>
[The Selling Stockholders:] (a)
[ ].................
[ ].................
[ ].................
Sumitomo Bank Capital Markets, Inc. (b)................................ 0
Kamehameha Activities Association and the Estate of Bernice
Pauahi Bishop (c)...................................................... 0
---------- ---------
Total.......................................................... 35,000,000 5,250,000
========== =========
</TABLE>
(a) These Selling Stockholders have appointed Henry M. Paulson, Jr., Robert
J. Hurst, John A. Thain and John L. Thornton, and each of them, as their
Attorneys-in-Fact.
(b) This Selling Stockholder, 277 Park Avenue, New York, New York 10172, is
represented by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New
York, New York 10019, as to matters of the Federal law of the United States and
the laws of the State of New York, and Robert A. Rabbino, Esq., General Counsel,
The Sumitomo Bank, Limited, 277 Park Avenue, New York, New York 10172, and has
appointed Henry M. Paulson, Jr., Robert J. Hurst, John A. Thain and John L.
Thornton, and each of them, as the Attorney-in-Fact for such Selling
Stockholder.
(c) This Selling Stockholder, 567 South King Street, Suite 150, Honolulu,
Hawaii 96813, is represented by Cravath, Swaine & Moore, Worldwide Plaza, 825
Eighth Avenue, New York, New York 10019, as to matters of the Federal law of the
United States and the laws of the State of New York, and ______________________,
as to matters of the laws of the State of Hawaii, and has appointed Henry M.
Paulson, Jr., Robert J. Hurst, John A. Thain and John L. Thornton, and each of
them, as the Attorney-in-Fact for such Selling Stockholder.
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<PAGE> 42
ANNEX I
Pursuant to Section 7(j) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's Quarterly Reports on Forms 10-Q incorporated by
reference in the Prospectus as indicated in their reports thereon; and on
the basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came
to their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for any interim period included in the Prospectus and included or
incorporated by reference in Item 6 of the 1999 Annual Report agrees with
the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such interim period(s) which
were included or incorporated by reference in the 1999 Annual Report;
(v) They have compared the information in the Prospectus and the 1999
Annual Report under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in such
letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
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<PAGE> 43
conform in all material respects with the disclosure requirements of Items
301, 302 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the 1999
Annual Report;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the 1999
Annual Report;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
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<PAGE> 44
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock pursuant to
employee benefit plans, upon exercise of options or delivery pursuant
to restricted stock units and upon conversions of convertible
securities) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter;
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated total revenues, consolidated net revenues, pre-tax
earnings or the total or per share amounts of consolidated net income
or other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as compared
with the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
-3-
