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Exhibit T
THE GOLDMAN SACHS GROUP, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
------------------------
August 1, 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,
A.G. Edwards & Sons, Inc.,
FleetBoston Robertson Stephens Inc.,
Edward D. Jones & Co., L.P.,
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:
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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 (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 9,614,247 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 Ltd 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,
BNP Paribas, 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.,
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
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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.
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
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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 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,
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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 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;
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(v) Neither the Company nor any of its subsidiaries (the
"Significant Subsidiaries") that are listed or that are required to be
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
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
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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 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
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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 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
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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 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
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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 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;
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(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 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
authorized (if applicable), executed and delivered by such Selling
Stockholder to The Chase Manhattan Bank, as custodian (the
"Custodian"), such Selling Stockholder has duly authorized (if
applicable), 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
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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 Sumitomo Bank Capital Markets, Inc. and Kamehameha
Activities Association (jointly with the Estate of Bernice Pauahi
Bishop) have duly authorized, executed and delivered this Agreement and
the Global Underwriting Agreements; 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 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 $97.00, 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
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<PAGE> 13
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.
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
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<PAGE> 14
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 August 7, 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.
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
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<PAGE> 15
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 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
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<PAGE> 16
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;
(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
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<PAGE> 17
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 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
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<PAGE> 18
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:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware;
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<PAGE> 19
(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 and
related matters were discussed and reviewed certain certificates of certain
officers of
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<PAGE> 20
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> 21
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 and limited
partnership interests in Goldman, Sachs & Co. and the general
partnership interests 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
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<PAGE> 22
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;
(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",
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<PAGE> 23
insofar as they purport to describe the provisions of the Federal laws
of the United States 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 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.
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<PAGE> 24
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;
(e) Linklaters, 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 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
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<PAGE> 25
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 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;
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<PAGE> 26
(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 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
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<PAGE> 27
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;
(i) Watanabe, Ing & Kawashima, 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;
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<PAGE> 28
(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;
(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, in the case of Kamehameha
Activities Association, a Custody Agreement have been duly authorized,
executed and delivered by such Selling Stockholder and the Power of
Attorney constitutes a valid and binding instrument of such Selling
Stockholder in accordance with its 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
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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 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
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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
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
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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 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 the Company 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 the Company 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
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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 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
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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) 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.
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(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.
(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
-34-
<PAGE> 35
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
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
-35-
<PAGE> 36
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.
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.
-36-
<PAGE> 37
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 three 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.
-37-
<PAGE> 38
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: /s/ David A. Viniar
--------------------------------------------------
Name: David A. Viniar
Title: Chief Financial Officer
Sumitomo Bank Capital Markets, Inc.
By: /s/ Natsuo Okada
--------------------------------------------------
Name: Natsuo Okada
Title: President
Kamehameha Activities Association
By: /s/ Wallace G.K. Chin
--------------------------------------------------
Name: Wallace G.K. Chin
Title: President
The Trustees of the Estate of Bernice Pauahi
Bishop
/s/ Francis A. Keala
--------------------------------------------------
/s/ Constance H. Lau
--------------------------------------------------
/s/ David P. Coon
--------------------------------------------------
-38-
<PAGE> 39
*
--------------------------------------------------
Bradley I. Abelow
*
--------------------------------------------------
Andrew M. Alper
*
--------------------------------------------------
Armen A. Avanessians
*
--------------------------------------------------
David M. Baum
*
--------------------------------------------------
Ron E. Beller
*
--------------------------------------------------
Milton R. Berlinski
*
--------------------------------------------------
Lloyd C. Blankfein
*
--------------------------------------------------
David W. Blood
*
--------------------------------------------------
The Daniel G. Brennan Family
Limited Partnership
*
--------------------------------------------------
Peter L. Briger, Jr.
*
--------------------------------------------------
Richard J. Bronks
-39-
<PAGE> 40
*
--------------------------------------------------
Lawrence R. Buchalter
*
--------------------------------------------------
Christopher J. Carrera
*
--------------------------------------------------
Mary Ann Casati
*
--------------------------------------------------
Anahue Trust
*
--------------------------------------------------
Zachariah Cobrinik
*
--------------------------------------------------
Gary D. Cohn
*
--------------------------------------------------
Christopher A. Cole
*
--------------------------------------------------
Carlos A. Cordeiro
*
--------------------------------------------------
Henry Cornell
*
--------------------------------------------------
Jon S. Corzine
*
--------------------------------------------------
Frank L. Coulson, Jr.
*
--------------------------------------------------
Randolph L. Cowen
*
--------------------------------------------------
Timothy D. Dattels
-40-
<PAGE> 41
*
--------------------------------------------------
Gavyn Davies
*
--------------------------------------------------
David A. Dechman
*
--------------------------------------------------
Robert V. Delaney, Jr.
*
--------------------------------------------------
Alexander C. Dibelius
*
--------------------------------------------------
John O. Downing
*
--------------------------------------------------
C. Steven Duncker
*
--------------------------------------------------
Glenn P. Earle
*
--------------------------------------------------
Paul S. Efron
*
--------------------------------------------------
Pieter Maarten Feenstra
*
--------------------------------------------------
Lawton W. Fitt
*
--------------------------------------------------
David B. Ford
*
--------------------------------------------------
Edward C. Forst
*
--------------------------------------------------
Christopher G. French
-41-
<PAGE> 42
*
--------------------------------------------------
Richard A. Friedman
*
--------------------------------------------------
Joseph D. Gatto
*
--------------------------------------------------
Peter C. Gerhard
*
--------------------------------------------------
Jeffrey B. Goldenberg
*
--------------------------------------------------
Jacob D. Goldfield
*
--------------------------------------------------
Amy O. Goodfriend
*
--------------------------------------------------
Andrew M. Gordon
*
--------------------------------------------------
Geoffrey T. Grant
*
--------------------------------------------------
Joseph D. Gutman
*
--------------------------------------------------
Robert S. Harrison
*
--------------------------------------------------
Thomas J. Healey
*
--------------------------------------------------
Sylvain M. Hefes
*
--------------------------------------------------
Vyrona Trust
-42-
<PAGE> 43
*
--------------------------------------------------
David B. Heller
*
--------------------------------------------------
Mary C. Henry
*
--------------------------------------------------
Jacquelyn M. Hoffman-Zehner
*
--------------------------------------------------
M. Blair Hull
*
--------------------------------------------------
Timothy J. Hunter
*
--------------------------------------------------
Fern Hurst
*
--------------------------------------------------
Robert J. Hurst
*
--------------------------------------------------
Timothy J. Ingrassia
*
--------------------------------------------------
Reuben Jeffery III
*
--------------------------------------------------
Stefan J. Jentzsch
*
--------------------------------------------------
Barry A. Kaplan
*
--------------------------------------------------
Robert J. Katz
*
--------------------------------------------------
Kevin W. Kennedy
-43-
<PAGE> 44
*
--------------------------------------------------
Douglas W. Kimmelman
*
--------------------------------------------------
Bradford C. Koenig
*
--------------------------------------------------
Jonathan L. Kolatch
*
--------------------------------------------------
David G. Lambert
*
--------------------------------------------------
Thomas D. Lasersohn
*
--------------------------------------------------
Matthew G. L'Heureux
*
--------------------------------------------------
Lawrence H. Linden
*
--------------------------------------------------
Robert Litterman
*
--------------------------------------------------
Robert H. Litzenberger
*
--------------------------------------------------
James Lodas
*
--------------------------------------------------
Jonathan M. Lopatin
*
--------------------------------------------------
Michael R. Lynch
*
--------------------------------------------------
Ronald G. Marks
-44-
<PAGE> 45
*
--------------------------------------------------
Eff W. Martin
*
--------------------------------------------------
John P. McNulty
*
--------------------------------------------------
E. Scott Mead
*
--------------------------------------------------
T. Willem Mesdag
*
--------------------------------------------------
Eric M. Mindich
*
--------------------------------------------------
Steven T. Mnuchin
*
--------------------------------------------------
Karsten N. Moller
*
--------------------------------------------------
The Karsten Moller and
Barbara Kahn-Moller Trust
*
--------------------------------------------------
Thomas K. Montag
*
--------------------------------------------------
Robert B. Morris III
*
--------------------------------------------------
Michael P. Mortara
*
--------------------------------------------------
Sharmin Mossavar-Rahmani
-45-
<PAGE> 46
*
--------------------------------------------------
Edward A. Mule
*
--------------------------------------------------
Thomas S. Murphy, Jr.
*
--------------------------------------------------
Avi M. Nash
*
--------------------------------------------------
Daniel M. Neidich
*
--------------------------------------------------
Kipp M. Nelson
*
--------------------------------------------------
Robin Neustein
*
--------------------------------------------------
Suzanne M. Nora Johnson
*
--------------------------------------------------
Michael E. Novogratz
*
--------------------------------------------------
Majix Limited
*
--------------------------------------------------
Terence J. O'Neill
*
--------------------------------------------------
Timothy J. O'Neill
*
--------------------------------------------------
Donald C. Opatrny, Jr.
*
--------------------------------------------------
Robert J. O'Shea
-46-
<PAGE> 47
*
--------------------------------------------------
Greg M. Ostroff
*
--------------------------------------------------
Robert J. Pace
*
--------------------------------------------------
Gregory K. Palm
*
--------------------------------------------------
Scott M. Pinkus
*
--------------------------------------------------
John J. Powers
*
--------------------------------------------------
Michael A. Price
*
--------------------------------------------------
Scott S. Prince
*
--------------------------------------------------
Stephen D. Quinn
*
--------------------------------------------------
Michael G. Rantz
*
--------------------------------------------------
Girish V. Reddy
*
--------------------------------------------------
Arthur J. Reimers III
*
--------------------------------------------------
James P. Riley, Jr.
*
--------------------------------------------------
Simon M. Robertson
-47-
<PAGE> 48
*
--------------------------------------------------
J. David Rogers
*
--------------------------------------------------
Emmanuel Roman
*
--------------------------------------------------
Rayas Trust
*
--------------------------------------------------
Ralph F. Rosenberg
*
--------------------------------------------------
Stuart M. Rothenberg
*
--------------------------------------------------
Michael S. Rubinoff
*
--------------------------------------------------
Richard M. Ruzika
*
--------------------------------------------------
Jeri Lynn Ryan
*
--------------------------------------------------
Michael D. Ryan
*
--------------------------------------------------
Joseph Sassoon
*
--------------------------------------------------
Muneer A. Satter
*
--------------------------------------------------
Jonathan S. Savitz
*
--------------------------------------------------
Peter Savitz
-48-
<PAGE> 49
*
--------------------------------------------------
Howard B. Schiller
*
--------------------------------------------------
Antoine Schwartz
*
--------------------------------------------------
Eric S. Schwartz
*
--------------------------------------------------
Charles B. Seelig, Jr.
*
--------------------------------------------------
Steven M. Shafran
*
--------------------------------------------------
Richard G. Sherlund
*
--------------------------------------------------
Michael S. Sherwood
*
--------------------------------------------------
Howard A. Silverstein
*
--------------------------------------------------
Dinakar Singh
*
--------------------------------------------------
Christian J. Siva-Jothy
*
--------------------------------------------------
Cody J Smith
*
--------------------------------------------------
Jonathan S. Sobel
*
--------------------------------------------------
Marc A. Spilker
-49-
<PAGE> 50
*
--------------------------------------------------
Daniel W. Stanton
*
--------------------------------------------------
Esta E. Stecher
*
--------------------------------------------------
Cathrine S. Steck
*
--------------------------------------------------
Fredric E. Steck
*
--------------------------------------------------
HJS2 Limited
*
--------------------------------------------------
Melalula Limited
*
--------------------------------------------------
Gene T. Sykes
*
--------------------------------------------------
Mark R. Tercek
*
--------------------------------------------------
Donald F. Textor
*
--------------------------------------------------
John R. Tormondsen
*
--------------------------------------------------
Leslie C. Tortora
*
--------------------------------------------------
John L. Townsend III
*
--------------------------------------------------
Byron D. Trott
-50-
<PAGE> 51
*
--------------------------------------------------
Robert B. Tudor III
*
--------------------------------------------------
Malcolm B. Turnbull
*
--------------------------------------------------
M.B. Turnbull Pty, Limited
*
--------------------------------------------------
John E. Urban
*
--------------------------------------------------
Lee G. Vance
*
--------------------------------------------------
George H. Walker IV
*
--------------------------------------------------
Thomas B. Walker III
*
--------------------------------------------------
Patrick J. Ward
*
--------------------------------------------------
George W. Wellde, Jr.
*
--------------------------------------------------
Kendrick R. Wilson III
*
--------------------------------------------------
Jon Winkelried
*
--------------------------------------------------
Steven J. Wisch
*
--------------------------------------------------
Richard E. Witten
-51-
<PAGE> 52
*
--------------------------------------------------
Tracy R. Wolstencroft
*
--------------------------------------------------
Danny Yee
*
--------------------------------------------------
Gregory H. Zehner
*
--------------------------------------------------
Joseph R. Zimmel
*
--------------------------------------------------
Barry Zubrow
*
--------------------------------------------------
Mark A. Zurack
*By: /s/ John A. Thain
-------------------------------------
John A. Thain
Attorney-in-Fact
-52-
<PAGE> 53
Accepted as of the date hereof:
Goldman, Sachs & Co.
/s/ Goldman, Sachs & Co.
-------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
