1
Exhibit 1.1
The Goldman Sachs Group, Inc.
Common Stock
(par value $.01 per share)
Underwriting Agreement
---------------------------------------
April _, 2001
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
A stockholder of The Goldman Sachs Group, Inc., a Delaware corporation
(the "Company"), named in Schedule II hereto (the "Selling Stockholder")
proposes, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
4,032,513 shares (the "Shares") of common stock, par value $.01 per share
("Stock"), of the Company. The Estate of Bernice Pauahi Bishop is joining in and
consenting to the sale of Stock by the Selling Stockholder, and for the purposes
of Sections 1(b) and (2), the introductory paragraph to Section 7, and Sections
7(b), 7(c), 7(i), 9, 10, 11, 12 and 15 and the first paragraph following Section
16 only, all references to a Selling Stockholder shall include Kamehameha
Activities Association and the Estate of Bernice Pauahi Bishop, jointly as if
they were one Selling Stockholder. Without limiting the generality of the
foregoing, the Estate of Bernice Pauahi Bishop intends to and hereby agrees to
sell, pursuant to Section 2 hereof, all of its interest, if any, in the Shares.
1. (a) The Company represents and warrants to, and agrees with
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-_____)
(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
2
delivered to you, and, excluding exhibits thereto but including all
documents incorporated by reference in the prospectus contained
therein, to you, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became or will become effective upon filing, no
other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed
with the Commission; and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including (i) the information 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);
-2-
3
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by Goldman, Sachs & Co. expressly for use therein or by the 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 Goldman, Sachs & Co.
expressly for use therein or by the 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
-3-
4
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 Goldman, Sachs & Co. expressly
for use therein or by the Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries (the
"Significant Subsidiaries") that are listed 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 24, 2000 (the "2000 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 material 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
-4-
5
corporate subsidiary of the Company that is a Significant Subsidiary (a
"Corporate Significant Subsidiary"), each partnership subsidiary of the
Company in which the Company or one of its subsidiaries is a general
partner that is a Significant Subsidiary (a "Partnership Significant
Subsidiary"), each unlimited liability company subsidiary of the
Company that is a Significant Subsidiary (a "ULLC Significant
Subsidiary") and each limited liability company in which the Company or
one of its subsidiaries is a managing member that is a Significant
Subsidiary (an "LLC Significant Subsidiary") has been duly incorporated
or organized, as the case may be, and is validly existing as a
corporation, partnership, unlimited liability company or limited
liability company, as the case may be, in good standing under the laws
of its jurisdiction of incorporation or organization, as the case may
be, with the power (corporate, partnership, unlimited liability company
or limited liability company, as the case may be) and authority to own
its properties and conduct its business as described in the Prospectus;
(viii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company, including the Shares, have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to
the description of the capital stock contained in the Prospectus; all
of the issued shares of capital stock of each Corporate Significant
Subsidiary, all of the issued shares of each ULLC Significant
Subsidiary and all of the membership interests in each LLC Significant
Subsidiary have been duly and 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 consummation of the transactions herein
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
-5-
6
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required to
be obtained or made by the Company for the sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, 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;
(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,
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
-6-
7
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 and SLK LLC
and its subsidiaries, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
(b) The Selling Stockholder represents and warrants to, and agrees
with, 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 Power of Attorney
and the Custody Agreement, in each case, referred to in clause (viii)
below, the sale of the Shares or the consummation by the Selling
Stockholder of the transactions contemplated by this Agreement, the
Power of Attorney or the Custody Agreement, except that the Selling
Stockholder may need to file an amendment to any report on Schedule 13D
relating to the Company previously filed by the Selling Stockholder and
except the registration under the Act of the 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 the Selling Stockholder of
this Agreement, the Power of Attorney and the Custody Agreement and for
the sale and delivery of the Shares hereunder and the Selling
Stockholder has full right, power and authority to enter into this
Agreement, the Power of Attorney and the Custody Agreement and to sell,
assign, transfer and deliver the Shares to be sold hereunder;
(ii) The sale of the Shares hereunder and the compliance by
the Selling Stockholder with all of the provisions of this Agreement,
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 the
Selling Stockholder is a party or by which the Selling Stockholder is
bound, or to which any of the property or assets of the Selling
Stockholder is subject; 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 the Selling Stockholder or
any
-7-
8
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Selling Stockholder or the
property of the Selling Stockholder;
(iii) The Selling Stockholder has, and immediately prior to
the Time of Delivery the Selling Stockholder will have, good and valid
title to the Shares, free and clear of all liens, encumbrances,
equities or claims, and, upon delivery of the Shares and payment
therefor pursuant hereto, good and valid title to the Shares, free and
clear of all liens, encumbrances, equities or claims, will pass to the
Underwriters;
(iv) The 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, the Selling Stockholder will deliver to you prior to or
at the Time of Delivery 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 the
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 (information furnished by the Selling
Stockholder to the Company for this purpose shall include any
information provided to the Company by the Estate of Bernice Pauahi
Bishop to the extent set forth in Section 8(b));
(vii) The Shares have been placed in custody under a Non-ERISA
Custody Agreement, dated as of May 7, 1999, together with Instructions
to
-8-
9
Custodian, in each case, in the form heretofore furnished to you (the
"Custody Agreement"), duly authorized, executed and delivered by the
Selling Stockholder to The Chase Manhattan Bank, as custodian (the
"Custodian"); the Selling Stockholder has duly authorized, 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 the Selling Stockholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to authorize
the delivery of the Shares and otherwise to act on behalf of the
Selling Stockholder in connection with the transactions contemplated by
this Agreement and the Custody Agreement; and the Selling Stockholder
(jointly with the Estate of Bernice Pauahi Bishop) have duly
authorized, executed and delivered this Agreement; and
(viii) The Shares are held in custody under the Custody
Agreement and are subject to the interests of the Underwriters under
this Agreement ; the arrangements made by the Selling Stockholder for
such custody, and the appointment by the Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent
irrevocable; the obligations of the Selling Stockholder hereunder shall
not be terminated by operation of law, whether, 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 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 Stockholder in accordance with the terms and conditions
of this Agreement 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, the Selling
Stockholder, jointly with the Estate of Bernice Pauahi Bishop, agrees to sell to
the Underwriters, and Underwriters agree to purchase from the Selling
Stockholder, at the purchase price per share of $-, the Shares.
3. Upon the authorization by you of the release of the Shares, the
Underwriters propose to offer the Shares for sale upon the terms and conditions
set forth in the Prospectus.
-9-
10
4. (a) The Shares, 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 Stockholder shall
be delivered by or on behalf of the Selling Stockholder 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 the Underwriters, against
payment by or on behalf of the Underwriters 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. The
Selling Stockholder and the Estate of Bernice Pauahi Bishop agree that the
Selling Stockholder will receive payment for the Shares to be sold jointly by
them. The Selling Stockholder 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 9:30 a.m., New York City time, on April __,
2001 or such other time and date as Goldman, Sachs & Co. and the Selling
Stockholder may agree upon in writing. Such time and date for delivery of the
Shares is herein called the "Time of Delivery".
(b) The documents to be delivered at the 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(i) 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
the 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 the
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 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 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
-10-
11
it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction; and to comply with all applicable
securities and other laws, rules and regulations in each such jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
is required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements 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 the Underwriters 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 the
-11-
12
Underwriters are required to deliver a prospectus in connection with sales of
any of the Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of the Underwriters, to prepare
and deliver to the Underwriters 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) 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;
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders generally, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission); and
(g) 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 the Selling Stockholder, jointly and severally,
covenant and agree with one another and with the Underwriters that the Selling
Stockholder will pay
-12-
13
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, 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) all expenses and taxes (domestic and
foreign) incident to the sale and delivery of the Shares by the Selling
Stockholder to the Underwriters; (ix) the fees and expenses of the
Attorneys-in-Fact and Custodian and (x) 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) the Selling Stockholder will
pay or cause to be paid (i) any fees and expenses of counsel for the Selling
Stockholder and (ii) all transfer taxes incident to the sale and delivery of the
Shares. 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 Stockholder shall not be required to pay or
to reimburse the Company for, the cost of any other matters not directly
relating to the sale and purchase of the Shares pursuant to this Agreement, and
that], except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters, as to the Shares to be
delivered at the 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 Stockholder herein are, at and as
of the Time of Delivery, true and correct, the condition that the Company and
the Selling Stockholder shall have performed all of its and their obligations
hereunder theretofore to be performed and the following additional conditions:
-13-
14
(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) 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(a) hereto), dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) This Agreement has been duly executed and delivered by or
on behalf of the 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 by
the Selling Stockholder, 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 the 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 the Shares by the
Underwriters;
(iii) Good and valid title to the Shares, free and clear of
all liens, encumbrances, equities or claims, has been transferred to
the Underwriters, who have purchased the 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 the Selling Stockholder and constitute valid
and binding agreements of the 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
-14-
15
State of Hawaii, such counsel has relied on the opinion to you referred to in
Section 7(c) below;
(c) 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(b) hereto), dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder; and the sale of
the Shares hereunder and the compliance by the Selling Stockholder with
all of the provisions of this Agreement, 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 is
subject as identified to such counsel by an officer of Kamehameha
Activities Association as being all agreements or instruments that
relate to over $1,000,000 of indebtedness or contain any limitation or
restriction on transfers of securities by Kamehameha Activities
Association;
(ii) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the consummation of the transactions contemplated by this Agreement to
be taken by the Selling Stockholder in connection with the sale of the
Shares, except such as may be required under Hawaii securities or Blue
Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters;
(iii) Immediately prior to the sale of the Shares to be sold
by the Selling Stockholder under this Agreement, the Selling
Stockholder was the record and beneficial owner of the Shares, free and
clear, to such counsel's knowledge, of adverse claims;
(iv) Assuming that the Shares to be sold by the Selling
Stockholder and the certificate(s) therefor have been delivered to the
Underwriters registered in the
-15-
16
names of the Underwriters (upon registration of transfer), or indorsed
to the Underwriters or in blank, and the Underwriters acquire their
interests in the Shares without notice of any adverse claim (within the
meaning of section 8-105 of the Uniform Commercial Code), the
Underwriters will acquire record and beneficial ownership of the Shares
free and clear of adverse claims;
(v) The Selling Stockholder has the power and authority to
sell, assign, transfer and deliver the Shares under this Agreement; 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 the Selling Stockholder and the Power of
Attorney constitutes a valid and binding instrument of the 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 the Selling Stockholder in respect of matters of fact as
to ownership of, and liens, encumbrances, equities or claims on the Shares,
provided that such counsel shall state that they believe that you and they are
justified in relying upon such certificate. In addition, such counsel may also
state that as to all matters of the laws of the State of New York, such counsel
is relying on the opinion to you referred to in Section 7(b) hereof;
(d) (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 material 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 the Time of
Delivery on the terms and in the manner contemplated in the Prospectus as
amended or supplemented;
-16-
17
(e) 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;
(f) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at the Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(g) The Shares to be sold by the Selling Stockholder at the Time of
Delivery shall have been duly listed on the New York Stock Exchange;
(h) 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
(i) The Company shall have furnished or caused to be furnished to you,
and the Selling Stockholder shall have furnished to you, at the Time of
Delivery, certificates of officers of the Company and of the Selling
Stockholder, respectively, satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling Stockholder,
respectively, herein at and as of the Time of Delivery, as to the performance by
the Company and the Selling Stockholder of all of their respective obligations
hereunder to be performed at or prior to the 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 (d) of this Section, and as to such other matters as you may
reasonably request.
8. (a) The Company will indemnify and hold harmless the Underwriters
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriters 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
-17-
18
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 the
Underwriters for any legal or other expenses reasonably incurred by the
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 Goldman, Sachs & Co. expressly for use therein.
(b) The Selling Stockholder will indemnify and hold harmless the
Underwriters against any losses, claims, damages or liabilities, joint or
several, to which the Underwriters 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 the
Selling Stockholder expressly for use therein; and will reimburse the
Underwriters for any legal or other expenses reasonably incurred by the
Underwriters in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the 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 Goldman, Sachs & Co. expressly for use
therein; provided, further, that the liability of the Selling Stockholder
pursuant to this subsection (b) shall not exceed the amount of net proceeds
received by the Selling Stockholder from the sale of the Shares. For purposes of
this Section 8(b), written information furnished to the Company by the Selling
Stockholder 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.
-18-
19
(c) The Underwriters will indemnify and hold harmless the Company and
the Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or the 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 Goldman, Sachs & Co. expressly for use therein; and
will reimburse the Company and the Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or the 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.
-19-
20
(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 Stockholder 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 Stockholder 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
Stockholder 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 Stockholder 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
Stockholder 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, the Selling Stockholder 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 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), the
Underwriters shall not 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 the Underwriters have otherwise been required
-20-
21
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission and the Selling Stockholder shall not be required to contribute
an amount that, together with any other payments made pursuant to this Section
8, exceeds the net proceeds received by the Selling Stockholder from the sale of
the 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.
(f) The obligations of the Company and the Selling Stockholder under
this Section 8 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Underwriters 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 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
the Selling Stockholder within the meaning of the Act.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholder and the
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 the Underwriters or any controlling person of the
Underwriters, or the Company, or any of the Selling Stockholder, or any officer
or director or controlling person of the Company, or any controlling person of
the 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 the Underwriters 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
-21-
22
interest is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
10. If for any reason the Shares are not delivered by or on behalf of
the Selling Stockholder as provided herein, the [Company] [Selling Stockholder]
will reimburse the Underwriters for all of their out-of-pocket expenses,
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 Stockholder shall then
be under no further liability to the Underwriters in respect of the Shares not
so delivered except as provided in Sections 6 and 8 hereof.
11. In all dealings hereunder with the Selling Stockholder, you and the
Company shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of the Selling Stockholder made or given by any or all of
the Attorneys-in-Fact for the 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 Goldman, Sachs & Co., 85 Broad Street, New York, New
York 10004, Attention: Registration Department; if to the Selling Stockholder
shall be delivered or sent by mail, telex or facsimile transmission to the
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. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholder and, to
the extent provided in Sections 8 and 9 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Stockholder or
the Underwriters, 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 the
Underwriters shall be deemed a successor or assign by reason merely of such
purchase.
13. 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.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
-22-
23
15. 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.
-23-
24
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof, and upon the acceptance hereof by
the Underwriters, this letter and such acceptance hereof shall constitute a
binding agreement among the Underwriters, the Company and each of the Selling
Stockholder.
Very truly yours,
The Goldman Sachs Group, Inc.
By:
-----------------------------
Name:
Title:
Kamehameha Activities Association
By:
-----------------------------
Name:
Title:
The Trustees of the Estate of
Bernice Pauahi Bishop
-----------------------------
-----------------------------
-----------------------------
Accepted as of the date hereof:
- ------------------------------
(Goldman, Sachs & Co.)
25
SCHEDULE I
Total Number
of Shares
Underwriters to be Purchased
Goldman, Sachs & Co..................................... 4,032,513
-25-
26
SCHEDULE II
Total Number
of Shares
Selling Stockholder To Be Sold
Kamehameha Activities Association and the Estate of
Bernice Pauahi Bishop (1) 4,032,513
(1) This Selling Stockholder, 567 South King Street, Suite 150,
Honolulu, Hawaii 96813, is represented by Cravath, Swaine & Moore, Worldwide
Plaza, 825 Eighth Avenue, New York, New York 10019, as to matters of the Federal
law of the United States and the laws of the State of New York, and Watanabe,
Ing & Kawashima, First Hawaiian Center, 999 Bishop Street, Honolulu, Hawaii
96813, as to matters of the laws of the State of Hawaii, and has appointed Henry
M. Paulson, Jr., Robert J. Hurst, John A. Thain and John L. Thornton, and each
of them, as the Attorney-in-Fact for the Selling Stockholder.