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Exhibit V
THE GOLDMAN SACHS GROUP, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
(ASIA/PACIFIC VERSION)
August 1, 2000
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.,
Were Stockbroking Ltd,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman Sachs (Asia) L.L.C.
68th Floor, Cheung Kong Center,
2 Queens Road,
Central, Hong Kong.
Ladies and Gentlemen:
Certain stockholders of The Goldman Sachs Group, Inc., a Delaware
corporation (the "Company"), named in Schedule II hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 1,000,000 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 150,000 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 purposes of Sections 2, 4, 7
(to the extent provided in the U.S. Underwriting Agreement (as defined below)),
10, 11, 12, 13, 16 and the first paragraph following Section 16 only, as well as
those Sections of the U.S. Underwriting Agreement that are incorporated by
reference into this Agreement, 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
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to sell, pursuant to Section 2 hereof, all of its interest, if any, in the
274,693 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, a copy of which is attached hereto (the "U.S.
Underwriting Agreement"), providing for the sale by the Selling Stockholders of
up to a total of 40,250,000 shares of Stock (the "U.S. Shares"), including the
option to purchase additional shares thereunder, through arrangements with
certain underwriters in the United States (the "U.S. Underwriters"), for whom
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 and Salomon Smith
Barney, Inc. are acting as representatives, 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 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 respective closings under this
Agreement, the U.S. Underwriting Agreement and the International Underwriting
Agreement are hereby expressly made conditional on one another. The Underwriters
hereunder, the U.S. Underwriters and the International Underwriters are
simultaneously entering into an Agreement among U.S., International and
Asia/Pacific 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, for the transfer of shares of
Stock among the three syndicates and for consultation by the Lead Managers
hereunder with Goldman, Sachs & Co. prior to exercising the rights of the
Underwriters under Section 7 hereof.
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, one relating to the International Shares and the other
relating to the U.S. Shares. The other two forms of prospectus will be identical
to the Asia/Pacific 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" in the International and Asia/Pacific Prospectuses. 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 of the shares of
Stock which may be sold pursuant to either this Agreement, the International
Underwriting Agreement or the U.S. 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.
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In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including the related
definitions of terms, which are also used elsewhere herein) and, for purposes of
applying the same, references (whether in these precise words or their
equivalent) in the incorporated provisions to the "Underwriters" shall be to the
Underwriters hereunder, to the "Shares" shall be to the Shares hereunder as just
defined, to "this Agreement" (meaning therein the U.S. Underwriting Agreement)
shall be to this Agreement (except where this Agreement is already referred to
or as the context may otherwise require) and to the representatives of the
Underwriters or to Goldman, Sachs & Co. shall be to the addressees of this
Agreement and to Goldman Sachs (Asia) L.L.C. ("GSA"), and, in general, all such
provisions and defined terms shall be applied mutatis mutandis as if the
incorporated provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Stockholders hereby make
to the Underwriters the same respective representations, warranties and
agreements as are set forth in Section 1 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
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 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 the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of 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 150,000 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
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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 (as defined in Section 4 hereof) 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 GSA 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 and in the forms of Agreement among
Underwriters (Asia/Pacific Version) and Selling Agreement (Asia/Pacific
Version), which have been previously submitted to the Company by you. Each
Underwriter hereby makes to and with the Company and the Selling Stockholders
the representations and agreements of such Underwriter as a member of the
selling group contained in Sections 3(f) and 3(g) of the form of Selling
Agreement (Asia/Pacific Version).
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 GSA 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 GSA, including, at the option of GSA, 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 GSA by the Custodian at least forty-eight hours in advance. Kamehameha
Activities Association and the Estate of Bernice Pauahi Bishop agree that
Kamehameha Activities Association will receive payment for the Shares to be sold
jointly by them. The Selling Stockholders will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto 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 on such other time and date as GSA 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 GSA in the
written notice given by GSA of the Underwriters' election to purchase such
Optional Shares, or such other time and date as GSA 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 of the U.S. Underwriting
Agreement, including the cross-receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 7(p) of the U.S.
Underwriting Agreement, will be delivered at the offices of Sullivan & Cromwell,
125 Broad Street, New York, New York 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,
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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 hereby makes with the Underwriters the same agreements
as are set forth in Section 5 of the U.S. Underwriting Agreement, which Section
is incorporated herein by this reference.
6. The Company, each of the Selling Stockholders, and the Underwriters
hereby agree with respect to certain expenses on the same terms as are set forth
in Section 6 of the U.S. Underwriting Agreement, which Section is incorporated
herein by this reference.
7. Subject to the provisions of the Agreement among Syndicates, the
obligations of the Underwriters hereunder shall be subject, in their discretion,
at each Time of Delivery to the condition that all representations and
warranties and other statements of the Company and 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 their
respective obligations hereunder theretofore to be performed, and additional
conditions identical to those set forth in Section 7 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through GSA 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
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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 GSA 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 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 GSA 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 (who 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
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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 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 Stockholder. 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
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any other payments made pursuant to this Section 8, exceeds the net proceeds
received by such Selling Stockholder from the sale of its Shares pursuant to
this Agreement. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders
under this Section 8 shall be in addition to any liability which the Company and
the respective Selling Stockholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company or any Selling Stockholder within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Stockholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholders shall have the right to postpone such
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 in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds
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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 of the Company in subsections (a)(ii), (a)(iii)
and (a)(iv) of Section 1 of the U.S. Underwriting Agreement incorporated by
reference herein 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 whether such interest is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
none of the Company or the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Section 6 and Section 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 GSA for all out-of-pocket expenses approved
in writing by GSA, 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.
-9-
<PAGE> 10
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 GSA on behalf of you as the representatives of the
Underwriters; 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 the Underwriters in care of GSA, 68th Floor, Cheung
Kong Center, 2 Queens Road Central, Hong Kong, Attention: General Counsel,
facsimile transmission No. (852) 2978 0440; 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 GSA 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.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
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 (Asia/Pacific
Version), the form of which shall be furnished 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.
-10-
<PAGE> 11
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
-11-
<PAGE> 12
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
-------------------------------------
-12-
<PAGE> 13
*
-------------------------------------
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
*
-------------------------------------
Lawrence R. Buchalter
*
-------------------------------------
Christopher J. Carrera
-13-
<PAGE> 14
*
-------------------------------------
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
*
-------------------------------------
Gavyn Davies
*
-------------------------------------
David A. Dechman
*
-------------------------------------
Robert V. Delaney, Jr.
-14-
<PAGE> 15
*
-------------------------------------
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
*
-------------------------------------
Richard A. Friedman
*
-------------------------------------
Joseph D. Gatto
*
-------------------------------------
Peter C. Gerhard
*
-------------------------------------
Jeffrey B. Goldenberg
-15-
<PAGE> 16
*
--------------------------------
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
*
--------------------------------
David B. Heller
*
--------------------------------
Mary C. Henry
*
--------------------------------
Jacquelyn M. Hoffman-Zehner
*
--------------------------------
M. Blair Hull
*
--------------------------------
Timothy J. Hunter
-16-
<PAGE> 17
*
--------------------------------
Fern Hurst
*
--------------------------------
Robert J. Hurst
*
--------------------------------
Timothy J. Ingrassia
*
--------------------------------
Reuben Jeffery III
*
--------------------------------
Stefan J. Jentzsch
*
--------------------------------
Barry A. Kaplan
*
--------------------------------
Robert J. Katz
*
--------------------------------
Kevin W. Kennedy
*
--------------------------------
Douglas W. Kimmelman
*
--------------------------------
Bradford C. Koenig
*
--------------------------------
Jonathan L. Kolatch
*
--------------------------------
David G. Lambert
*
--------------------------------
Thomas D. Lasersohn
*
--------------------------------
Matthew G. L'Heureux
-17-
<PAGE> 18
*
--------------------------------
Lawrence H. Linden
*
--------------------------------
Robert Litterman
*
--------------------------------
Robert H. Litzenberger
*
--------------------------------
James Lodas
*
--------------------------------
Jonathan M. Lopatin
*
--------------------------------
Michael R. Lynch
*
--------------------------------
Ronald G. Marks
*
--------------------------------
Eff W. Martin
*
--------------------------------
John P. McNulty
*
--------------------------------
E. Scott Mead
*
--------------------------------
T. Willem Mesdag
*
--------------------------------
Eric M. Mindich
*
--------------------------------
Steven T. Mnuchin
*
--------------------------------
Karsten N. Moller
-18-
<PAGE> 19
*
--------------------------------
The Karsten Moller and
Barbara Kahn-Moller Trust
*
--------------------------------
Thomas K. Montag
*
--------------------------------
Robert B. Morris III
*
--------------------------------
Michael P. Mortara
*
--------------------------------
Sharmin Mossavar-Rahmani
*
--------------------------------
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
-19-
<PAGE> 20
*
--------------------------------
Terence J. O'Neill
*
--------------------------------
Timothy J. O'Neill
*
--------------------------------
Donald C. Opatrny, Jr.
*
--------------------------------
Robert J. O'Shea
*
--------------------------------
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
-20-
<PAGE> 21
*
--------------------------------
Arthur J. Reimers III
*
--------------------------------
James P. Riley, Jr.
*
--------------------------------
Simon M. Robertson
*
--------------------------------
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
-21-
<PAGE> 22
*
--------------------------------
Jonathan S. Savitz
*
--------------------------------
Peter Savitz
*
--------------------------------
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
-22-
<PAGE> 23
*
--------------------------------
Marc A. Spilker
*
--------------------------------
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
-23-
<PAGE> 24
*
--------------------------------
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
*
--------------------------------
Tracy R. Wolstencroft
-24-
<PAGE> 25
*
--------------------------------
Danny Yee
*
--------------------------------
Gregory H. Zehner
*
--------------------------------
Joseph R. Zimmel
*
--------------------------------
Barry Zubrow
*
--------------------------------
Mark A. Zurack
*By: /s/ John A. Thain
-------------------------------------
John A. Thain
Attorney-in-Fact
-25-
<PAGE> 26
Accepted as of the date hereof:
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.
Were Stockbroking Ltd
By: Goldman Sachs (Asia) L.L.C.
By: /s/ Frederick J. Knecht
-----------------------------------------
(Attorney-in-Fact)
On behalf of each of the Underwriters
-26-
