-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OFW3j0QfaSVBBkg/xJCv898uxQ9uytTMxIWa/F0uwFSPzS2DQxulRgYY0Ca/tVNj 5XKXeFoPd9HZQJJD6ldsug== /in/edgar/work/20000802/0000950123-00-007078/0000950123-00-007078.txt : 20000921 0000950123-00-007078.hdr.sgml : 20000921 ACCESSION NUMBER: 0000950123-00-007078 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20000802 GROUP MEMBERS: GOLDMAN SACHS GROUP INC GROUP MEMBERS: GROUP MEMBERS LISTED IN FILING SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: [6211 ] IRS NUMBER: 133501777 STATE OF INCORPORATION: DE FISCAL YEAR END: 1126 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-56295 FILM NUMBER: 684260 BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: [6211 ] IRS NUMBER: 133501777 STATE OF INCORPORATION: DE FISCAL YEAR END: 1126 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 sc13da.txt AMENDMENT NO. 5 TO SCHEDULE 13D 1 SECURITIES EXCHANGE COMMISSION Washington, D.C. 20549 File No. 005-56295 ----------------------------------------------------- SCHEDULE 13D/A (Rule 13d-101) Amendment No. 5 INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) The Goldman Sachs Group, Inc. --------------------- (Name of Issuer) Common Stock, par value $.01 per share --------------------------- (Title of Class of Securities) 38141G 10 4 --------------------- (CUSIP Number) Robert J. Katz Gregory K. Palm James B. McHugh The Goldman Sachs Group, Inc. 85 Broad Street New York, New York 10004 Telephone: (212) 902-1000 -------------------- (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications) August 1, 2000 -------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. (Continued on following pages) 2 - ----------------------------- CUSIP NO. 38141G 10 4 13D - ----------------------------- - ------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: Each of the persons identified on Appendix A. - ------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP As to a group consisting solely of Covered Person (a) [x] As to a group consisting of persons other than Covered Persons (b) [x] - ------------------------------------------------------------------------------- 3. SEC USE ONLY - ------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: OO as to Covered Shares(1), OO and PF as to Uncovered Shares(2) (Applies to each person listed on Appendix A.) - ------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [ ] (Applies to each person listed on Appendix A.) - ------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION United States unless otherwise indicated on Appendix A. - ------------------------------------------------------------------------------- 7. SOLE VOTING POWER (See Item 6) NUMBER OF As to Covered Shares, 0 SHARES As to Uncovered Shares, as stated BENEFICIALLY in Appendix A OWNED BY ----------------------------------------------- REPORTING 8. SHARED VOTING POWER (See Item PERSON 6) (Applies to each person WITH listed on Appendix A.) 257,438,100 Covered Shares held by Covered Persons 5,109 Uncovered Shares held by Covered Persons(3) 1,510,376 Other Uncovered Shares held by Covered Persons(4) 10,987,710 shares held by KAA(5) 8,803,248 shares held by SBCM(5)/(6) ----------------------------------------------- 9. SOLE DISPOSITIVE POWER (See Item 6) As to Covered Shares, less than 1% As to Uncovered Shares, as stated in Appendix A ----------------------------------------------- 10. SHARED DISPOSITIVE POWER (See Item 6): As to Covered Shares, 0 As to Uncovered Shares, as stated in Appendix A - ------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 258,953,585(7) - ------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [x](7) (Applies to each person listed on Appendix A.) - ------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 57.9%(7) - ------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: OO as to persons listed in Appendix A under the caption "Trusts"; PN as to persons listed in Appendix A under the caption "Partnerships"; CO as to persons listed in Appendix A under the caption "Corporations"; IN as to all other persons listed in Appendix A. - --------------- (1) For a definition of this term, please see Item 2. (2) For a definition of this term, please see Item 3. (3) These are Uncovered Shares also described in Row 7 which each Covered Person is deemed to beneficially own by application of Rule 13d-5(b)(1), but do not include the Uncovered Shares described in note 4. Each Covered Person disclaims beneficial ownership of Uncovered Shares held by each other Covered Person. (4) These are Uncovered Shares held by 88 private charitable foundations established by 88 Covered Persons each of whom is a co-trustee of one or more of such private charitable foundations and may be deemed to beneficially own such Uncovered Shares. Each other Covered Person may be deemed to beneficially own such Uncovered Shares by application of Rule 13d-5(b)(1). Each such Covered Person disclaims beneficial ownership of such Uncovered Shares, and each other Covered Person also disclaims beneficial ownership of such Uncovered Shares. 2 3 (5) For a definition of this term, please see Item 2. The Covered Persons may be deemed to be members of a "group" with KAA and SBCM. Each Covered Person disclaims beneficial ownership of shares of Common Stock held by KAA and SBCM. (6) The 8,803,248 shares held by SBCM exclude 7,440,362 shares of Nonvoting Common Stock held by SBCM which, although immediately convertible into Common Stock, cannot currently be converted by SBCM due to restrictions imposed under the Bank Holding Company Act of 1956, as amended. Please see the separate Schedule 13D filed by SBCM and any amendments thereto for information relating to such shares. Each Covered Person disclaims beneficial ownership as to the Nonvoting Common Stock held by SBCM. (7) Excludes 10,987,710 and 8,803,248 shares of Common Stock held by KAA and SBCM, respectively, as to which each Covered Person disclaims beneficial ownership. 3 4 APPENDIX A
ITEM 6 ITEM 7 ITEM 8 ITEM 10 CITIZENSHIP SOLE VOTING SHARED VOTING ITEM 9 SHARED (UNITED STATES POWER OF POWER OF SOLE DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED POWER OF POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES UNCOVERED SHARES UNCOVERED SHARES - -------------------------- ---------- ------ ------ ---------------- ---------------- Bradley I. Abelow 0 0 0 0 Peter C. Aberg 0 0 0 0 Paul M. Achleitner Austria 0 0 0 0 Alberto F. Ades Argentina 0 0 0 0 Gregory A. Agran 0 0 0 0 Raanan A. Agus 0 0 0 0 Jonathan R. Aisbitt UK 0 0 0 0 Elliot M. Alchek 0 0 0 0 Andrew M. Alper 0 0 0 0 Philippe J. Altuzarra France 0 0 0 0 Lay Pheng Ang Singapore 0 0 0 0 Kazutaka P. Arai North Korea/ 0 0 0 0 South Korea David M. Atkinson UK 0 0 0 0 Mitchel J. August 0 0 0 0 Armen A. Avanessians 0 0 0 0 Dean C. Backer 0 0 0 0 Michiel J. Bakker The Netherlands 0 0 0 0 Mark E. Bamford 0 0 0 0 John S. Barakat 0 0 0 0 Barbara J. Basser-Bigio 0 0 0 0 Carl-Georg Germany 0 0 0 0 Bauer-Schlichtegroll David Baum 0 0 0 0 Patrick Y. Baune France 0 0 0 0 Robert A. Beckwitt 0 0 0 0 Jonathan A. Beinner 0 0 0 0 Ron E. Beller 0 0 0 0 Tarek M. Ben Halim Saudi Arabia 0 0 0 0 Jaime I. Bergel Spain 0 0 0 0 Milton R. Berlinski The Netherlands 0 0 0 0 Andrew S. Berman 0 0 0 0 Frances R. Bermanzohn 0 0 0 0 Stuart N. Bernstein 0 0 0 0 Robert A. Berry UK 0 0 0 0 Jean-Luc Biamonti Monaco 0 0 0 0 James J. Birch UK 0 0 0 0 Lloyd C. Blankfein 0 0 0 0 David W. Blood 0 0 0 0 Randall A. Blumenthal 0 0 0 0
4 5
ITEM 6 ITEM 10 CITIZENSHIP ITEM 7 SHARED (UNITED STATES SOLE VOTING ITEM 8 ITEM 9 DISPOSITIVE UNLESS POWER OF SHARED VOTING SOLE DISPOSITIVE POWER OF ITEM 1 OTHERWISE UNCOVERED POWER OF POWER OF UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES UNCOVERED SHARES UNCOVERED SHARES SHARES -------------------------- ---------- ------ ---------------- ---------------- ------ David R. Boles 0 0 0 0 Alison L. Bott UK 0 0 0 0 Charles W.A. Bott UK 0 0 0 0 Charles C. Bradford III 0 0 0 0 Benjamin S. Bram 0 0 0 0 Thomas C. Brasco 0 0 0 0 Daniel G. Brennan 0 0 0 0 Peter L. Briger, Jr. 0 0 0 0 Craig W. Broderick 0 0 0 0 Richard J. Bronks UK 0 0 0 0 Charles K. Brown UK 0 0 0 0 James K. Brown 0 0 0 0 Peter D. Brundage 0 0 0 0 Sholom Bryski 0 0 0 0 John J. Bu 0 0 0 0 Lawrence R. Buchalter 0 0 0 0 Mark J. Buisseret UK 0 0 0 0 Steven M. Bunson 0 0 0 0 Timothy B. Bunting UK 0 0 0 0 Andrew J. Burke-Smith Canada 0 0 0 0 Calvert C. Burkhart 0 0 0 0 Michael S. Burton UK 0 0 0 0 George H. Butcher III 0 0 0 0 Mary D. Byron 0 0 0 0 Lawrence V. Calcano 0 0 0 0 Elizabeth V. Camp 0 0 0 0 John D. Campbell 0 0 0 0 Laurie G. Campbell Canada 0 0 0 0 Richard M. Campbell-Breeden UK 0 0 0 0 Carmine C. Capossela 0 0 0 0 Mark M. Carhart 0 0 0 0 Anthony H. Carpet 0 0 0 0 Michael J. Carr 0 0 0 0 Christopher J. Carrera 0 0 0 0 Virginia E. Carter 0 0 0 0 Calvin R. Carver, Jr. 0 0 0 0 Mary Ann Casati 0 0 0 0 Chris Casciato 0 0 0 0 Douglas W. Caterfino 0 0 0 0 Michael J. Certo 0 0 0 0 Varkki P. Chacko USA/India 0 0 0 0 David K. Chang Taiwan 0 0 0 0
5 6
ITEM 6 ITEM 7 ITEM 8 ITEM 10 CITIZENSHIP SOLE VOTING SHARED VOTING ITEM 9 SHARED (UNITED STATES POWER OF POWER OF SOLE DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED POWER OF POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES UNCOVERED SHARES UNCOVERED SHARES - -------------------------- ---------- ------ ------ ---------------- ---------------- Thomas P. Chang 0 0 0 0 Sacha A. Chiaramonte Germany 0 0 0 0 Andrew A. Chisholm Canada 0 0 0 0 Robert J. Christie 0 0 0 0 Peter T. Cirenza 0 0 0 0 Kent A. Clark Canada 0 0 0 0 Zachariah Cobrinik 0 0 0 0 Abby Joseph Cohen 0 0 0 0 Lawrence H. Cohen 0 0 0 0 Marc I. Cohen 0 0 0 0 Gary D. Cohn 0 0 0 0 Christopher A. Cole 0 0 0 0 Timothy J. Cole 0 0 0 0 Laura C. Conigliaro 0 0 0 0 Liam Connell 0 0 0 0 Thomas G. Connolly Ireland/USA 0 0 0 0 Frank T. Connor 0 0 0 0 Donna L. Conti 0 0 0 0 Karen R. Cook UK 0 0 0 0 Edith W. Cooper 0 0 0 0 Philip A. Cooper 0 0 0 0 Carlos A. Cordeiro 0 0 0 0 Henry Cornell 0 0 0 0 E. Gerald Corrigan 0 0 0 0 Jon S. Corzine 0 0 0 0 Claudio Costamagna Italy 0 0 0 0 Frank L. Coulson, Jr. 0 0 0 0 Kenneth Courtis 0 0 0 0 Randolph L. Cowen 0 0 0 0 Neil D. Crowder 0 0 0 0 Eduardo A. Cruz 0 0 0 0 John P. Curtin, Jr. 0 0 0 0 John W. Curtis 0 0 0 0 Stephen C. Daffron 0 0 0 0 John S. Daly Ireland 0 0 0 0 Philip M. Darivoff 0 0 0 0 Matthew S. Darnall 0 0 0 0 Timothy D. Dattels Canada 0 0 0 0
6 7
ITEM 10 ITEM 6 ITEM 9 SHARED CITIZENSHIP ITEM 7 ITEM 8 SOLE DISPOSITIVE (UNITED STATES SOLE VOTING SHARED VOTING DISPOSITIVE POWER OF ITEM 1 UNLESS OTHERWISE POWER OF POWER OF POWER OF UNCOVERED NAMES OF REPORTING PERSONS INDICATED) UNCOVERED SHARES UNCOVERED SHARES UNCOVERED SHARES SHARES -------------------------- ---------- ---------------- ---------------- ---------------- ------ Gavyn Davies UK 0 0 0 0 Michael G. De Lathauwer Belgium 0 0 0 0 David A. Dechman 0 0 0 0 Mark Dehnert 0 0 0 0 Paul C. Deighton UK 0 0 0 0 James Del Favero Australia 0 0 0 0 Juan A. Del Rivero Spain 0 0 0 0 Robert V. Delaney, Jr. 0 0 0 0 Joseph Della Rosa 0 0 0 0 Emanuel Derman 0 0 0 0 Martin R. Devenish UK 0 0 0 0 Andrew C. Devenport UK 0 0 0 0 Stephen D. Dias UK 0 0 0 0 Armando A. Diaz 0 0 0 0 Alexander C. Dibelius Germany 0 0 0 0 Paul M. DiNardo 0 0 0 0 Simon P. Dingemans UK 0 0 0 0 Sandra D'Italia 0 0 0 0 Michele I. Docharty 0 0 0 0 Paula A. Dominick 0 0 0 0 Noel B. Donohoe Ireland 0 0 0 0 Jana Hale Doty 0 0 0 0 Robert G. Doumar, Jr. 0 0 0 0 Thomas M. Dowling 0 0 0 0 John O. Downing 0 0 0 0 Michael B. Dubno 0 0 0 0 Connie K. Duckworth 0 0 0 0 William C. Dudley 0 0 0 0 Brian J. Duffy 0 0 0 0 Matthieu B. Duncan 0 0 0 0 C. Steven Duncker 0 0 0 0 Karlo J. Duvnjak Canada 0 0 0 0 Jay S. Dweck 0 0 0 0 Gordon E. Dyal 0 0 0 0 Isabelle Ealet France 0 0 0 0 Glenn P. Earle UK 0 0 0 0 Paul S. Efron 0 0 0 0 Herbert E. Ehlers 0 0 0 0 Alexander S. Ehrlich 0 0 0 0 John E. Eisenberg 0 0 0 0 Edward K. Eisler Austria 0 0 0 0
7 8
ITEM 6 ITEM 10 CITIZENSHIP ITEM 8 ITEM 9 SHARED (UNITED STATES ITEM 7 SHARED VOTING SOLE DISPOSITIVE UNLESS SOLE VOTING POWER OF DISPOSITIVE POWER OF ITEM 1 OTHERWISE POWER OF UNCOVERED POWER OF UNCOVERED NAMES OF REPORTING PERSONS INDICATED) UNCOVERED SHARES SHARES UNCOVERED SHARES SHARES -------------------------- ---------- ---------------- ------ ---------------- ------ Glenn D. Engel 0 0 0 0 Davide G. Erro Italy 0 0 0 0 Michael P. Esposito 0 0 0 0 George C. Estey Canada 0 0 0 0 Mark D. Ettenger 0 0 0 0 Bruce J. Evans 0 0 0 0 J. Michael Evans Canada 0 0 0 0 W. Mark Evans Canada 0 0 0 0 Charles P. Eve UK 0 0 0 0 Brian F. Farr 0 0 0 0 Elizabeth C. Fascitelli 0 0 0 0 Jeffrey F. Fastov 0 0 0 0 Pieter Maarten Feenstra The Netherlands 0 0 0 0 Steven M. Feldman 0 0 0 0 Laurie R. Ferber 0 0 0 0 Robert P. Fisher, Jr. 0 0 0 0 Lawton W. Fitt 0 0 0 0 Stephen C. Fitzgerald Australia 0 0 0 0 Thomas M. Fitzgerald III 0 0 0 0 Daniel M. Fitzpatrick 0 0 0 0 James A. Fitzpatrick 0 0 0 0 David N. Fleischer 0 0 0 0 David B. Ford 0 0 0 0 Edward C. Forst 0 0 0 0 George B. Foussianes 0 0 0 0 Oliver L. Frankel 0 0 0 0 Matthew T. Fremont-Smith 0 0 0 0 Christopher G. French UK 0 0 0 0 Richard A. Friedman 0 0 0 0 Matthias K. Frisch Switzerland 0 0 0 0 C. Douglas Fuge 0 0 0 0 Shirley Fung UK 0 0 0 0 Joseph D. Gatto 0 0 0 0 Emmanuel Gavaudan France 0 0 0 0 Nicholas J. Gaynor UK 0 0 0 0 Eduardo B. Gentil 0 0 0 0 Peter C. Gerhard 0 0 0 0 Nomi P. Ghez Israel/USA 0 0 0 0 Scott A. Gieselman 0 0 0 0 H. John Gilbertson, Jr. 0 0 0 0
8 9
ITEM 10 ITEM 6 ITEM 8 SHARED CITIZENSHIP ITEM 7 SHARED VOTING ITEM 9 DISPOSITIVE (UNITED STATES SOLE VOTING POWER OF SOLE DISPOSITIVE POWER OF ITEM 1 UNLESS OTHERWISE POWER OF UNCOVERED POWER OF UNCOVERED NAMES OF REPORTING PERSONS INDICATED) UNCOVERED SHARES SHARES UNCOVERED SHARES SHARES -------------------------- ---------- ---------------- ------ ---------------- ------ Joseph H. Gleberman 0 0 0 0 Richard J. Gnodde Ireland/South 0 0 0 0 Africa Jeffrey B. Goldenberg 0 2,860(8) 0 2,860(8) Jacob D. Goldfield 0 0 0 0 James S. Golob 0 0 0 0 Amy O. Goodfriend 0 0 0 0 Jay S. Goodgold 0 0 0 0 Andrew M. Gordon 0 0 0 0 Anthony J. Gordon 0 0 0 0 Robert D. Gottlieb 0 0 0 0 Frank J. Governali 0 0 0 0 Lorenzo Grabau Italy 0 0 0 0 Geoffrey T. Grant 0 0 0 0 William M. Grathwohl 0 0 0 0 David J. Greenwald 0 0 0 0 Louis S. Greig UK 0 0 0 0 Peter W. Grieve 0 0 0 0 Christopher Grigg UK 0 0 0 0 Douglas C. Grip 0 0 0 0 Eric P. Grubman 0 0 0 0 Celeste A. Guth 0 0 0 0 Joseph D. Gutman 0 0 0 0 Erol Hakanoglu Turkey 0 0 0 0 Roger C. Harper 0 0 0 0 Charles T. Harris III 0 0 0 0 Robert S. Harrison 0 0 0 0 Shelley A. Hartman 0 0 0 0 Paul R. Harvey 0 0 0 0 Arthur J. Hass 0 0 0 0 Nobumichi Hattori Japan 0 0 0 0 Stephen J. Hay UK 0 0 0 0 Walter H. Haydock 0 0 0 0 Isabelle Hayen Belgium 0 0 0 0 Keith L. Hayes UK 0 0 0 0 Thomas J. Healey 0 0 0 0 John P. Heanue 0 0 0 0 Robert C. Heathcote UK 0 0 0 0
- ---------------------------------- (8) Shared with family members. 9 10
ITEM 6 ITEM 9 CITIZENSHIP ITEM 7 SOLE ITEM 10 (UNITED STATES SOLE VOTING ITEM 8 DISPOSITIVE SHARED UNLESS POWER OF SHARED VOTING POWER OF DISPOSITIVE ITEM 1 OTHERWISE UNCOVERED POWER OF UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES UNCOVERED SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ---------------- ------ ---------------- Sylvain M. Hefes France 0 0 0 0 David B. Heller 0 0 0 0 Steven M. Heller 0 0 0 0 R. Douglas Henderson 0 0 0 0 David L. Henle 0 0 0 0 Mary C. Henry 0 0 0 0 Raimund W. Herden Germany 0 0 0 0 Bruce A. Heyman 0 0 0 0 Robert E. Higgins 0 0 0 0 Joanne M. Hill 0 0 0 0 M. Roch Hillenbrand 0 0 0 0 Maykin Ho 0 0 0 0 Timothy E. Hodgson Canada 0 0 0 0 Jacquelyn M. Hoffman-Zehner Canada 0 0 0 0 Christopher G. Hogg New Zealand/USA 0 0 0 0 Daniel E. Holland III 0 0 0 0 Teresa E. Holliday 0 0 0 0 Gregory T. Hoogkamp 0 0 0 0 Thomas J. Hopkins 0 0 0 0 Robert D. Hormats 0 0 0 0 Robert G. Hottensen, Jr. 0 0 0 0 Michael R. Housden UK 0 0 0 0 Paul J. Huchro 0 0 0 0 James A. Hudis 0 0 0 0 Terry P. Hughes Ireland 0 0 0 0 Bimaljit S. Hundal UK 0 0 0 0 Edith A. Hunt 0 0 0 0 Susan J. Hunt UK 0 0 0 0 Fern Hurst 0 0 0 0 Robert J. Hurst 0 0 0 0 Toni Infante 0 0 0 0 Francis J. Ingrassia 0 0 0 0 Timothy J. Ingrassia 0 0 0 0 Masahiro Iwano Japan 0 0 0 0 Raymond J. Iwanowski 0 0 0 0 William L. Jacob III 0 0 0 0 Mark M. Jacobs 0 0 0 0 Richard I. Jaffee 0 0 0 0 Reuben Jeffery III 0 0 0 0 Stefan J. Jentzsch Germany 0 0 0 0 Dan H. Jester 0 0 0 0 Daniel J. Jick 0 0 0 0 Robert H. Jolliffe UK 0 0 0 0 Andrew J. Jonas 0 0 0 0
10 11
ITEM 9 ITEM 6 ITEM 7 ITEM 8 SOLE ITEM 10 CITIZENSHIP SOLE VOTING SHARED VOTING DISPOSITIVE SHARED (UNITED STATES POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Robert C. Jones 0 0 0 0 Chansoo Joung 0 0 0 0 Andrew J. Kaiser 0 0 0 0 Ann F. Kaplan 21 0 21 0 Barry A. Kaplan 0 0 0 0 David A. Kaplan 0 0 0 0 Jason S. Kaplan 0 0 0 0 Robert S. Kaplan 0 0 0 0 Scott B. Kapnick 0 0 0 0 Erland S. Karlsson Sweden 0 0 0 0 James M. Karp 0 0 0 0 Richard Katz 0 0 0 0 Robert J. Katz 0 0 0 0 Sofia Katzap 0 0 0 0 David K. Kaugher 0 0 0 0 Tetsuya Kawano Japan 0 0 0 0 R. Mark Keating 0 0 0 0 John L. Kelly 0 0 0 0 Kevin W. Kennedy 0 0 0 0 Thomas J. Kenny 0 0 0 0 Lawrence S. Keusch 0 0 0 0 Rustom N. Khandalavala 0 0 0 0 Peter D. Kiernan III 0 0 0 0 James T. Kiernan, Jr. 0 0 0 0 Sun Bae Kim Canada 0 0 0 0 Douglas W. Kimmelman 0 0 0 0 Colin E. King Canada 0 0 0 0 Robert C. King, Jr. 0 0 0 0 Adrian P. Kingshott UK 0 0 0 0 Timothy M. Kingston 0 0 0 0 Lincoln Kinnicutt 0 0 0 0 Ewan M. Kirk UK 0 0 0 0 Daniel H. Klebes II 0 0 0 0 Michael K. Klingher 0 0 0 0 Craig A. Kloner 0 0 0 0 Jonathan R. Knight UK 0 0 0 0
11 12
ITEM 6 ITEM 9 CITIZENSHIP ITEM 7 ITEM 8 SOLE ITEM 10 (UNITED STATES SOLE VOTING SHARED VOTING DISPOSITIVE SHARED UNLESS POWER OF POWER OF POWER OF DISPOSITIVE ITEM 1 OTHERWISE UNCOVERED UNCOVERED UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ------ ------ ---------------- Bradford C. Koenig 0 0 0 0 Mark J. Kogan 0 0 0 0 Stanley Kogelman 0 0 0 0 Jonathan L. Kolatch 0 0 0 0 Richard E. Kolman 0 0 0 0 David J. Kostin 0 0 0 0 Koji Kotaka Japan 0 0 0 0 Peter S. Kraus 0 15(9) 0 15(9) Lawrence Kutscher 0 0 0 0 Christoph M. Ladanyi Austria 0 0 0 0 Peggy A. Lamb 0 0 0 0 David G. Lambert 0 0 0 0 Thomas K. Lane 0 0 0 0 Pierre F. Lapeyre, Jr. 0 0 0 0 Bruce M. Larson 0 0 0 0 Thomas D. Lasersohn 0 0 0 0 Anthony D. Lauto 0 0 0 0 John J. Lauto 0 0 0 0 Matthew Lavicka 0 0 0 0 David N. Lawrence 0 0 0 0 Peter Layton 0 0 0 0 Susan R. Leadem 0 0 0 0 Andrew D. Learoyd UK 0 0 0 0 Chang-Ho J. Lee USA/South Korea 0 0 0 0 Donald C. Lee 0 0 0 0 Kenneth H. M. Leet 0 0 0 0 Anthony J. Leitner 0 0 0 0 Paulo C. Leme 0 0 0 0 Hughes B. Lepic France 0 0 0 0 Alan B. Levande 0 0 0 0 Ronald S. Levin 0 0 0 0 Jack Levy 0 0 0 0 Thomas B. Lewis, Jr. 0 0 0 0 Mark E. Leydecker 0 0 0 0 Matthew G. L'Heureux 0 0 0 0 Gwen R. Libstag 0 0 0 0 Stephen C. Lichtenauer 0 0 0 0 Roger A. Liddell UK 0 0 0 0 Richard J. Lieb 0 0 0 0 Mitchell J. Lieberman 0 0 0 0 Syaru Shirley Lin 0 0 0 0 Josephine Linden UK 0 0 0 0 Lawrence H. Linden 0 0 0 0 Robert Litterman 0 0 0 0
- ---------------------------------- (9) Shared with family members. 12 13
ITEM 6 ITEM 10 CITIZENSHIP ITEM 8 ITEM 9 SHARED (UNITED STATES ITEM 7 SHARED SOLE DISPOSITIVE UNLESS SOLE VOTING VOTING POWER DISPOSITIVE POWER OF ITEM 1 OTHERWISE POWER OF OF UNCOVERED POWER OF UNCOVERED NAMES OF REPORTING PERSONS INDICATED) UNCOVERED SHARES SHARES UNCOVERED SHARES SHARES -------------------------- ---------- ---------------- ------ ---------------- ------ Robert H. Litzenberger 0 0 0 0 David McD A. Livingstone Australia 0 0 0 0 Douglas F. Londal 0 0 0 0 Jacques M. Longerstaey USA/Belgium 0 0 0 0 Jonathan M. Lopatin 0 0 0 0 Francisco Lopez-Balboa 0 0 0 0 Victor M. Lopez-Balboa 0 0 0 0 Antigone Loudiadis UK 0 0 0 0 C. Richard Lucy 0 0 0 0 Michael C. Luethke 0 0 0 0 Kevin L. Lundeen 0 0 0 0 Michael R. Lynch 0 0 0 0 Shogo Maeda Japan 0 0 0 0 John A. Mahoney 0 0 0 0 Sean O. Mahoney 0 0 0 0 Russell E. Makowsky 0 0 0 0 Peter G. C. Mallinson UK 0 0 0 0 Kathleen M. Maloney 0 0 0 0 Charles G. R. Manby UK 0 0 0 0 Robert S. Mancini 0 0 0 0 Barry A. Mannis 0 0 0 0 Arthur S. Margulis, Jr. 0 0 0 0 Jorge O. Mariscal Mexico 0 0 0 0 Richard J. Markowitz 0 0 0 0 Ronald G. Marks 0 0 0 0 Robert J. Markwick UK 0 0 0 0 Eff W. Martin 0 0 0 0 Jacques Martin Canada 0 0 0 0 John J. Masterson 0 0 0 0 David J. Mastrocola 0 0 0 0 Kathy M. Matsui 0 0 0 0 Tadanori Matsumura Japan 0 0 0 0 Heinz Thomas Mayer Germany 0 0 0 0 Thomas J. McAdam 0 0 0 0 Richard F. McArdle 0 0 0 0 Theresa E. McCabe 0 0 0 0 Joseph M. McConnell 0 0 0 0
13 14
ITEM 6 CITIZENSHIP ITEM 7 ITEM 9 ITEM 10 (UNITED STATES SOLE VOTING ITEM 8 SOLE SHARED UNLESS POWER OF SHARED VOTING DISPOSITIVE DISPOSITIVE ITEM 1 OTHERWISE UNCOVERED POWER OF POWER OF POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES UNCOVERED SHARES UNCOVERED SHARES UNCOVERED SHARES -------------------------- ---------- ------ ---------------- ---------------- ---------------- Mark E. McGoldrick 0 0 0 0 Joseph P. McGrath Jr. 0 0 0 0 Stephen J. McGuinness 0 0 0 0 John C. McIntire 0 0 0 0 John W. McMahon 0 0 0 0 Geraldine F. McManus 0 0 0 0 Richard P. McNeil Jamaica 0 0 0 0 Audrey A. McNiff 0 0 0 0 Anne Welsh McNulty 0 0 0 0 John P. McNulty 0 0 0 0 E. Scott Mead 0 0 0 0 David M. Meerschwam The Netherlands 0 0 0 0 Sanjeev K. Mehra India 0 0 0 0 Michael C. Melignano 0 0 0 0 Amos Meron USA/Israel 0 0 0 0 T. Willem Mesdag 0 0 0 0 Andrew L. Metcalfe UK 0 0 0 0 Michael R. Miele 0 0 0 0 Gunnar T. Miller 0 0 0 0 Kenneth A. Miller 0 0 0 0 Therese L. Miller 0 0 0 0 James E. Milligan 0 0 0 0 Eric M. Mindich 0 0 0 0 Peter A. Mindnich 0 0 0 0 Edward S. Misrahi Italy 0 0 0 0 Steven T. Mnuchin 0 0 0 0 Kurt C. Mobley 0 0 0 0 Masanori Mochida Japan 0 0 0 0 Karsten N. Moller Denmark 0 0 0 0 Thomas K. Montag 0 0 0 0 Wayne L. Moore 0 0 0 0 Yukihiro Moroe Japan 0 0 0 0 Robert B. Morris III 0 0 0 0 Michael P. Mortara 0 0 0 0 Jennifer Moses 0 0 0 0 Jeffrey M. Moslow 0 0 0 0
14 15
ITEM 6 ITEM 10 CITIZENSHIP ITEM 7 ITEM 9 SHARED (UNITED SOLE VOTING ITEM 8 SOLE DISPOSITIVE STATES UNLESS POWER OF SHARED VOTING DISPOSITIVE POWER OF ITEM 1 OTHERWISE UNCOVERED POWER OF POWER OF UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES UNCOVERED SHARES UNCOVERED SHARES SHARES -------------------------- ---------- ------ ---------------- ---------------- ------ Sharmin Mossavar-Rahmani UK 0 0 0 0 Gregory T. Mount 0 0 0 0 Ian Mukherjee UK 0 0 0 0 Edward A. Mule 0 0 0 0 Eric D. Mullins 0 0 0 0 Donald J. Mulvihill 0 0 0 0 Patrick E. Mulvihill Ireland 0 0 0 0 Richard A. Murley UK 0 0 0 0 Philip D. Murphy 43 0 43 0 Thomas S. Murphy, Jr. 0 0 0 0 Gaetano J. Muzio 0 0 0 0 Michiya Nagai Japan 0 0 0 0 Gabrielle U. Napolitano 0 0 0 0 Avi M. Nash 0 0 0 0 Trevor P. Nash UK 0 0 0 0 Warwick M. Negus Australia 0 0 0 0 Daniel M. Neidich 22 0 22 0 Kipp M. Nelson 0 0 0 0 Robin Neustein 0 0 0 0 Duncan L. Niederauer 0 0 0 0 Susan M. Noble UK 0 0 0 0 Suok J. Noh 0 0 0 0 Suzanne M. Nora Johnson 0 0 0 0 Christopher K. Norton 0 0 0 0 Michael E. Novogratz 0 0 0 0 Jay S. Nydick 0 0 0 0 Katherine K. Oakley 0 0 0 0 Alok Oberoi India 0 0 0 0 David Ogens 0 0 0 0 Jinsuk T. Oh South Korea 0 0 0 0 John C. O'Hara 0 0 0 0 Terence J. O'Neill UK 0 0 0 0 Timothy J. O'Neill 0 0 0 0 Richard T. Ong Malaysia 0 0 0 0 Ronald M. Ongaro 0 0 0 0 Donald C. Opatrny, Jr. 0 0 0 0 Daniel B. O'Rourke 0 0 0 0
15 16
ITEM 6 ITEM 9 ITEM 10 CITIZENSHIP ITEM 8 SOLE SHARED (UNITED STATES ITEM 7 SHARED VOTING DISPOSITIVE DISPOSITIVE UNLESS SOLE VOTING POWER OF POWER OF POWER OF ITEM 1 OTHERWISE POWER OF UNCOVERED UNCOVERED UNCOVERED NAMES OF REPORTING PERSONS INDICATED) UNCOVERED SHARES SHARES SHARES SHARES -------------------------- ---------- ---------------- ------ ------ ------ Robert J. O'Shea 0 0 0 0 Joel D. Ospa 0 0 0 0 Greg M. Ostroff 0 0 0 0 Terence M. O'Toole 0 0 0 0 Robert J. Pace 0 0 0 0 Robert N. Packer 0 0 0 0 Gregory K. Palm 0 0 0 0 Mukesh K. Parekh 0 0 0 0 Geoffrey M. Parker 0 0 0 0 Melissa B. Patrusky 0 0 0 0 Henry M. Paulson, Jr. 0 0 0 0 David B. Philip 0 0 0 0 Paul A. Phillips 0 0 0 0 Alberto M. Piedra, Jr. 0 0 0 0 Stephen R. Pierce 0 0 0 0 Philip J. Pifer 0 0 0 0 Scott M. Pinkus 0 0 0 0 Timothy C. Plaut Germany 0 0 0 0 Andrea Ponti Italy/USA 0 0 0 0 Ellen R. Porges 0 0 0 0 Wiet H. M. Pot The Netherlands 0 0 0 0 Michael J. Poulter UK 0 0 0 0 John J. Powers 0 0 0 0 Richard H. Powers 0 0 0 0 Michael A. Price 0 0 0 0 Scott Prince 0 0 0 0 Nomi M. Prins 0 0 0 0 Goran V. Puljic 0 0 0 0 Alok Puri UK 0 0 0 0 Kevin A. Quinn 0 0 0 0 Stephen D. Quinn 0 0 0 0 John J. Rafter Ireland 0 0 0 0 Jonathan Raleigh 0 0 0 0 Dioscoro-Roy I. Ramos Phillippines 0 0 0 0 Gregory G. Randolph 0 0 0 0 Charlotte P. Ransom UK 0 0 0 0 Michael G. Rantz 0 0 0 0 Joseph Ravitch 0 0 0 0 Girish V. Reddy 0 0 0 0 Arthur J. Reimers III 0 0 0 0 Anthony John Reizenstein UK 0 0 0 0 James P. Riley, Jr. 0 0 0 0 Kimberly E. Ritrievi 0 0 0 0 John Rizner 0 0 0 0 Simon M. Robertson UK 0 0 0 0
16 17
ITEM 6 ITEM 7 ITEM 8 ITEM 9 ITEM 10 CITIZENSHIP SOLE VOTING SHARED VOTING SOLE SHARED (UNITED STATES POWER OF POWER OF DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS OTHERWISE UNCOVERED UNCOVERED POWER OF POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES SHARES UNCOVERED SHARES UNCOVERED SHARES - -------------------------- ---------- ------ ------ ---------------- ---------------- J. David Rogers 0 0 0 0 John F. W. Rogers 0 0 0 0 Emmanuel Roman France 0 0 0 0 Eileen P. Rominger 0 0 0 0 Pamela P. Root 0 0 0 0 Ralph F. Rosenberg 0 0 0 0 Jacob D. Rosengarten 0 0 0 0 Richard J. Rosenstein 0 0 0 0 Ivan Ross 0 0 0 0 Stuart M. Rothenberg 0 0 0 0 Stuart R. Rubenstein 0 0 0 0 Michael S. Rubinoff 0 0 0 0 Ernest H. Ruehl, Jr. 0 0 0 0 Paul M. Russo 0 0 0 0 Richard M. Ruzika 0 0 0 0 Jeri Lynn Ryan 0 0 0 0 John C. Ryan 0 0 0 0 Michael D. Ryan 0 0 0 0 Katsunori Sago Japan 0 0 0 0 Pablo J. Salame Ecuador 0 0 0 0 J. Michael Sanders 0 0 0 0 Allen Sangines-Krause Mexico 0 0 0 0 Richard A. Sapp 0 0 0 0 Joseph Sassoon Israel 0 0 0 0 Tsutomu Sato Japan 240 0 240 0 Muneer A. Satter 0 0 0 0 Jonathan S. Savitz 0 0 0 0 Peter Savitz 0 0 0 0 Paul S. Schapira Italy 0 0 0 0 P. Sheridan Schechner 1,000 0 1,000 0 Gary B. Schermerhorn 0 0 0 0 Mitchell I. Scherzer Canada 0 0 0 0 Howard B. Schiller 0 0 0 0 Jeffrey W. Schroeder 0 0 0 0 Antoine Schwartz France 0 0 0 0 Eric S. Schwartz 0 0 0 0 Harvey M. Schwartz 0 0 0 0 Mark Schwartz 0 0 0 0 Steven M. Scopellite 0 0 0 0 David J. Scudellari 0 0 0 0 Charles B. Seelig, Jr. 0 0 0 0 Karen D. Seitz 0 0 0 0 Randolph Sesson, Jr. 0 0 0 0 Steven M. Shafran 0 0 0 0
17 18
ITEM 10 ITEM 6 ITEM 7 ITEM 9 SHARED CITIZENSHIP SOLE VOTING ITEM 8 SOLE DISPOSITIVE (UNITED STATES POWER OF SHARED VOTING DISPOSITIVE POWER OF ITEM 1 UNLESS OTHERWISE UNCOVERED POWER OF POWER OF UNCOVERED NAMES OF REPORTING PERSONS INDICATED) SHARES UNCOVERED SHARES UNCOVERED SHARES SHARES -------------------------- ---------- ------ ---------------- ---------------- ------ Richard S. Sharp UK 0 0 0 0 John P. Shaughnessy 0 0 0 0 Robert J. Shea, Jr. 0 0 0 0 James M. Sheridan 0 0 0 0 Richard G. Sherlund 0 0 0 0 Michael S. Sherwood UK 0 0 0 0 Michael H. Siegel 0 0 0 0 Howard A. Silverstein 0 0 0 0 Richard P. Simon 0 0 0 0 Victor R. Simone, Jr. 0 0 0 0 Dinakar Singh 0 0 0 0 Ravi M. Singh 0 0 0 0 Ravi Sinha India/USA 0 0 0 0 Allen W. Sinsheimer 0 0 0 0 Edward M. Siskind 0 0 0 0 Christian J. Siva-Jothy UK 0 0 0 0 Mark F. Slaughter 0 0 0 0 Linda J. Slotnick 0 0 0 0 Cody J Smith 0 0 0 0 Derek S. Smith 0 0 0 0 Michael M. Smith 0 0 0 0 Sarah E. Smith UK 0 0 0 0 Trevor A. Smith UK 0 0 0 0 Randolph C. Snook 0 8(10) 0 8(10) Jonathan S. Sobel 0 0 0 0 David M. Solomon 0 0 0 0 Judah C. Sommer 0 0 0 0 Theodore T. Sotir 0 0 0 0 Daniel L. Sparks 0 0 0 0 Marc A. Spilker 0 0 0 0 Daniel W. Stanton 0 0 0 0 Esta E. Stecher 0 0 0 0 Cathrine S. Steck 0 0 0 0 Fredric E. Steck 0 0 0 0 Robert K. Steel 0 0 0 0 Robert S. Stellato 0 0 0 0 Joseph P. Stevens 0 0 0 0 Raymond S. Stolz 0 0 0 0 Steven H. Strongin 0 0 0 0 Andrew J. Stuart Australia 0 0 0 0
- ---------------------------------- (10) Shared with family members. 18 19
ITEM 6 CITIZENSHIP ITEM 8 ITEM 9 ITEM 10 (UNITED STATES ITEM 7 SHARED VOTING SOLE SHARED UNLESS SOLE VOTING POWER OF DISPOSITIVE DISPOSITIVE ITEM 1 OTHERWISE POWER OF UNCOVERED POWER OF POWER OF NAMES OF REPORTING PERSONS INDICATED) UNCOVERED SHARES SHARES UNCOVERED SHARES UNCOVERED SHARES -------------------------- ---------- ---------------- ------ ---------------- ---------------- Patrick Sullivan 0 0 0 0 Hsueh J. Sung Taiwan 0 0 0 0 George M. Suspanic Spain 0 0 0 0 Peter D. Sutherland S.C. Ireland 0 0 0 0 Andrew M. Swinburne UK 0 0 0 0 Gene T. Sykes 0 0 0 0 Shahriar Tadjbakhsh 0 0 0 0 Ronald K. Tanemura UK/USA 0 0 0 0 John H. Taylor 0 0 0 0 Robert E. Taylor 0 0 0 0 Greg W. Tebbe 0 0 0 0 Kiyotaka Teranishi Japan 0 0 0 0 Mark R. Tercek 0 0 0 0 Donald F. Textor 0 0 0 0 John A. Thain 0 0 0 0 Darren S. Thompson 0 0 0 0 John L. Thornton 0 0 0 0 Rory T. Tobin Ireland 0 0 0 0 Daisuke Toki Japan 0 0 0 0 Massimo Tononi Italy 0 0 0 0 John R. Tormondsen 0 0 0 0 Leslie C. Tortora 0 0 0 0 John L. Townsend III 0 0 0 0 Mark J. Tracey UK 0 0 0 0 Stephen S. Trevor 0 0 0 0 Byron D. Trott 0 0 0 0 Michael A. Troy 0 0 0 0 Donald J. Truesdale 0 0 0 0 Robert B. Tudor III 0 0 0 0 Thomas E. Tuft 0 0 0 0 John Tumilty UK 0 0 0 0 Barry S. Turkanis 0 0 0 0 Malcolm B. Turnbull Australia 554 0 554 0 Christopher H. Turner 0 0 0 0 Thomas B. Tyree, Jr. 0 0 0 0 Harkanwar Uberoi India 0 0 0 0 Kaysie P. Uniacke 0 0 0 0 John E. Urban 0 0 0 0 Hugo H. Van Vredenburch The Netherlands 0 0 0 0 Lee G. Vance 0 0 0 0 Corrado P. Varoli Canada 0 0 0 0 John J. Vaske 0 0 0 0
19 20
ITEM 6 CITIZENSHIP ITEM 7 ITEM 9 ITEM 10 (UNITED SOLE VOTING ITEM 8 SOLE SHARED STATES UNLESS POWER OF SHARED VOTING DISPOSITIVE DISPOSITIVE ITEM 1 OTHERWISE UNCOVERED POWER OF POWER OF POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES UNCOVERED SHARES UNCOVERED SHARES UNCOVERED SHARES -------------------------- ---------- ------ ---------------- ---------------- ---------------- David A. Viniar 0 0 0 0 Barry S. Volpert 0 0 0 0 George H. Walker IV 0 0 0 0 Thomas B. Walker III 0 0 0 0 Berent A. Wallendahl Norway 0 0 0 0 David R. Walton UK 0 0 0 0 Hsueh-Ming Wang 0 0 0 0 Patrick J. Ward 0 0 0 0 Haruko Watanuki Japan 0 0 0 0 Edward F. Watts, Jr. 0 300(11) 0 300(11) David M. Weil 0 0 0 0 John S. Weinberg 0 0 0 0 Peter A. Weinberg 0 0 0 0 Helge Weiner-Trapness Sweden 0 0 0 0 Mark S. Weiss 0 0 0 0 George W. Wellde, Jr. 0 0 0 0 Bradley W. Wendt 0 0 0 0 Lance N. West 0 0 0 0 Peter Wheeler UK 0 0 0 0 Barbara A. White 0 0 0 0 A. Carver Wickman 0 0 0 0 Susan A. Willetts 0 0 0 0 Anthony G. Williams UK 0 0 0 0 Christopher G. Williams UK 0 0 0 0 Gary W. Williams 0 0 0 0 Todd A. Williams 0 0 0 0 John S. Willian 0 0 0 0 Kenneth W. Willman 0 0 0 0 Kevin D. Willsey 0 0 0 0 Andrew F. Wilson New Zealand 0 0 0 0 Kendrick R. Wilson III 0 0 0 0 Jon Winkelried 0 0 0 0 Steven J. Wisch 0 0 0 0 Michael S. Wishart 0 0 0 0 Richard E. Witten 0 0 0 0 William H. Wolf, Jr. 0 0 0 0 Tracy R. Wolstencroft 0 0 0 0 Zi Wang Xu Canada/ 0 0 0 0 China (PRC) Richard A. Yacenda 0 0 0 0 Tetsufumi Yamakawa Japan 0 0 0 0 Yasuyo Yamazaki Japan 11 0 11 0 Anne Yang 0 0 0 0 Xiang-Dong Yang China (PRC) 0 0 0 0
(11) Shared with family members. 20 21
ITEM 6 ITEM 9 CITIZENSHIP ITEM 7 SOLE ITEM 10 (UNITED STATES SOLE VOTING ITEM 8 DISPOSITIVE SHARED UNLESS POWER OF SHARED VOTING POWER OF DISPOSITIVE ITEM 1 OTHERWISE UNCOVERED POWER OF UNCOVERED POWER OF NAMES OF REPORTING PERSONS INDICATED) SHARES UNCOVERED SHARES SHARES UNCOVERED SHARES -------------------------- ---------- ------ ---------------- ------ ---------------- Danny O. Yee 0 0 0 Jaime E. Yordan 0 0 0 0 W. Thomas York, Jr. 0 0 0 0 Paul M. Young 0 0 0 0 Richard M. Young 0 0 0 0 Michael J. Zamkow 0 35(12) 0 35(12) Paolo Zannoni Italy 0 0 0 0 Yoel Zaoui France 0 0 0 0 Gregory H. Zehner 0 0 0 0 Jide J. Zeitlin 0 0 0 0 Joan H. Zief 0 0 0 0 Joseph R. Zimmel 0 0 0 0 James P. Ziperski 0 0 0 0 Barry L. Zubrow 0 0 0 0 Mark A. Zurack 0 0 0 0 Shares held by 88 private N/A 0 1,510,376 0 1,510,376 charitable foundations established by 88 Covered Persons each of whom is a co-trustee of one or more of such private charitable foundations(13)
- ---------------------------------------- (12) Shared with family members. (13) Each Covered Person disclaims beneficial ownership of all such shares of Common Stock. 21 22
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- TRUSTS 2000 Carlos A. Cordeiro Grantor Retained Annuity Trust 0 0 0 0 2000 Danny O. Yee Grantor Retained Annuity Trust 0 0 0 0 2000 Douglas W. Kimmelman Grantor Retained Annuity Trust 0 0 0 0 2000 Girish V. Reddy Grantor Retained Annuity Trust 0 0 0 0 2000 James M. Sheridan Grantor Retained Annuity Trust 0 0 0 0 2000 John A. Thain Grantor Retained Annuity Trust 0 0 0 0 2000 Kipp M. Nelson Grantor Retained Annuity Trust 0 0 0 0 2000 Mary Ann Casati Grantor Retained Annuity Trust 0 0 0 0 2000 Michael E. Novogratz Grantor Retained Annuity Trust 0 0 0 0 2000 Scott S. Prince Grantor Retained Annuity Trust 0 0 0 0 The Abby Joseph Cohen 2000 Annuity Trust I 0 0 0 0 The Abby Joseph Cohen 2000 Family Trust 0 0 0 0 The Adina R. Lopatin 2000 Trust 0 0 0 0 The Alexander H. Witten 2000 Trust 0 0 0 0 The Alexander I. Berlinski 2000 Trust 0 0 0 0 The Alexander Litzenberger 2000 Grantor Retained Annuity Trust 0 0 0 0
22 23
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Alexander Litzenberger Remainder Trust 0 0 0 0 The Alexandra D. Steel 2000 Trust 0 0 0 0 The Alexis Blood 2000 Trust 0 0 0 0 The Alyssa Blood 2000 Trust 0 0 0 0 The Amanda Liann Mead 2000 Trust 0 0 0 0 Anahue Trust Jersey 0 0 0 0 Andrew L. Fippinger-Millennium Trust 0 0 0 0 The Andrew M Alper 2000 Annuity Trust I 0 0 0 0 The Andrew M. Gordon 2000 Family Trust 0 0 0 0 Ann F. Kaplan Two Year Trust Dated June 2000 0 0 0 0 The Anne R. Witten 2000 Trust 0 0 0 0 The Anne Sullivan Wellde 2000 Trust 0 0 0 0 The Anthony D. Lauto 2000 Annuity Trust I 0 0 0 0 The Anthony D. Lauto 2000 Family Trust 0 0 0 0 The Arthur J. Reimers, III Defective Trust 2000 Connecticut 0 0 0 0 Arthur J. Reimers, III Grantor Retained Annuity Trust 2000 Connecticut 0 0 0 0 The Avi M. Nash 2000 Annuity Trust I 0 0 0 0 The Avi M. Nash 2000 Family Trust 0 0 0 0 The Bari Marissa Schwartz 2000 Trust 0 0 0 0 Barry A. Kaplan 2000 Family Trust 0 0 0 0 Barry A. Kaplan 2000 GRAT 0 0 0 0 The Barry L. Zubrow 2000 Annuity Trust I 0 0 0 0 The Barry L. Zubrow 2000 Family Trust 0 0 0 0
23 24
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Benjamin H. Sherlund 2000 Trust 0 0 0 0 The Benjamin Kraus 2000 Trust 0 0 0 0 The Bradley Abelow Family 2000 Trust 0 0 0 0 The Caceres Novogratz Family Trust 0 0 0 0 The Carlos A. Cordeiro Trust 0 0 0 0 The Charlotte Steel 2000 Trust 0 0 0 0 The Charlotte Textor 2000 Trust 0 0 0 0 The Christopher A. Cole 2000 Annuity Trust I 0 0 0 0 The Christopher A. Cole 2000 Family Trust 0 0 0 0 The Christopher K. Norton 2000 Family Trust 0 0 0 0 The Christopher Palmisano 2000 Grantor Retained Annuity Trust 0 0 0 0 The Christopher Palmisano Remainder Trust 0 0 0 0 The Christopher Ryan Tortora 2000 Trust 0 0 0 0 The Cody J Smith 2000 Annuity Trust I 0 0 0 0 The Cody J Smith 2000 Family Trust 0 0 0 0 The Connie K. Duckworth 2000 Annuity Trust I 0 0 0 0 The Connie K. Duckworth 2000 Family Trust 0 0 0 0 The Constance A. Haydock 2000 Trust 0 0 0 0 The Daniel Alexander Schwartz 2000 Trust 0 0 0 0 The Daniel M. Neidich 2000 Annuity Trust I 0 0 0 0 The Daniel W. Stanton 2000 Annuity Trust I 0 0 0 0 The Daniel W. Stanton, II 2000 Trust 0 0 0 0
24 25
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Danny O. Yee Trust 0 0 0 0 The David B. Ford 2000 Annuity Trust DTD as of 6/16/2000 Pennsylvania 0 0 0 0 The David B. Heller 2000 Annuity Trust I 0 0 0 0 The David B. Heller 2000 Family Trust 0 0 0 0 The David G. Lambert 2000 Annuity Trust I 0 0 0 0 The David G. Lambert 2000 Family Trust 0 0 0 0 The David L. Henle 2000 Annuity Trust I 0 0 0 0 The David L. Henle 2000 Family Trust 0 0 0 0 The David M. Baum Family 2000 Trust New Jersey 0 0 0 0 The David Viniar 2000 Annuity Trust I 0 0 0 0 The David W. Blood 2000 Annuity Trust I 0 0 0 0 The Donald F. Textor 2000 Annuity Trust I 0 0 0 0 The Douglas W. Kimmelman Trust 0 0 0 0 The Eaddy Adele Kiernan 2000 Trust 0 0 0 0 The Edward C. Forst 2000 Annuity Trust I 0 0 0 0 The Edward C. Forst 2000 Family Trust 0 0 0 0 The Edward Scott Mead 2000 Annuity Trust I 0 0 0 0 Eff Warren Martin 2000 Childrens Trust California 0 0 0 0 Eff Warren Martin 2000 Grantor Retained Annuity Trust California 0 0 0 0 The Elizabeth Anne Corrigan 2000 Trust 0 0 0 0 The Elizabeth H. Coulson 2000 Trust 0 0 0 0 The Elizabeth L. Heller 2000 Trust 0 0 0 0 The Elizabeth Lin Mead 2000 Trust 0 0 0 0
25 26
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Elizabeth M. Stanton 2000 Trust 0 0 0 0 The Elizabeth Steel 2000 Trust 0 0 0 0 The Ellie Dorit Neustein 2000 Trust 0 0 0 0 The Emily Austen Katz 2000 Trust 0 0 0 0 The Emily Stecher 2000 Trust 0 0 0 0 The Emma M.L. Mead 2000 Trust 0 0 0 0 The Eric Fithian 2000 Trust 0 0 0 0 The Erin Marie Tormondsen 2000 Trust 0 0 0 0 The Esta Eiger Stecher 2000 Annuity Trust I 0 0 0 0 The Francis J. Ingrassia 2000 Annuity Trust I 0 0 0 0 The Francis J. Ingrassia 2000 Family Trust 0 0 0 0 The Frank L. Coulson III 2000 Trust 0 0 0 0 The Fredric E. Steck 2000 Annuity Trust I 0 0 0 0 The Fredric E. Steck 2000 Family Trust 0 0 0 0 Gary D. Cohn 2000 Family Trust 0 0 0 0 Gary D. Cohn 2000 GRAT 0 0 0 0 The Geoffrey T. Grant 2000 Family Trust 0 0 0 0 The George H. Walker 2000 Annuity Trust I 0 0 0 0 The George H. Walker 2000 Family Trust 0 0 0 0 The George W. Wellde, Jr. 2000 Annuity Trust I 0 0 0 0 The George William Wellde, III 2000 Trust 0 0 0 0 Ghez 2000 GRAT 0 0 0 0 Ghez 2000 Non-GST-Exempt Trust 0 0 0 0
26 27
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Girish V. Reddy Trust 0 0 0 0 The Goldenberg 2000 Annuity Trust I 0 0 0 0 The Goldenberg 2000 Family Trust 0 0 0 0 The Greg M. Ostroff 2000 Annuity Trust I 0 0 0 0 The Greg M. Ostroff 2000 Family Trust 0 0 0 0 The Gregory H. Zehner 2000 Annuity Trust I 0 0 0 0 The Gregory H. Zehner 2000 Family Trust 0 0 0 0 The Gregory K. Palm 2000 Annuity Trust I 0 0 0 0 The Gregory K. Palm 2000 Family Trust 0 0 0 0 The Guapulo Trust Jersey 0 0 0 0 The Howard A. Silverstein 2000 Annuity Trust I 0 0 0 0 The Howard A. Silverstein 2000 Family Trust 0 0 0 0 The Howard B. Schiller 2000 Annuity Trust I 0 0 0 0 The Isabelle M.L. Mead 2000 Trust 0 0 0 0 The J. David Rogers 2000 Annuity Trust I 0 0 0 0 The James Alexander Mead 2000 Trust 0 0 0 0 The James M. Sheridan Trust 0 0 0 0 The James Nicholas Katz 2000 Trust 0 0 0 0 James P. Riley, Jr. 2000 Family Trust 0 0 0 0 James P. Riley, Jr. 2000 GRAT 0 0 0 0 The Jason Kraus 2000 Trust 0 0 0 0 The Jason William Tortora 2000 Trust 0 0 0 0 The Jeffrey D. Witten 2000 Trust 0 0 0 0
27 28
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Jennifer Lauren Alper 2000 Trust 0 0 0 0 JG 2000 Trust 0 0 0 0 JG 2000 Trust (continuing trust) 0 0 0 0 The John A. Thain Trust 0 0 0 0 The John J. Powers 2000 Family Trust 0 0 0 0 The John L. Townsend, III 2000 Annuity Trust I 0 0 0 0 The John O. Downing 2000 Annuity Trust I 0 0 0 0 The John O. Downing 2000 Family Trust 0 0 0 0 The John P. Curtin, Jr. 2000 Annuity Trust I 0 0 0 0 The John P. Curtin, Jr. 2000 Family Trust 0 0 0 0 The John R. Tormondsen 2000 Annuity Trust I 0 0 0 0 The John R. Tormondsen, Jr. 2000 Trust 0 0 0 0 The John S. Weinberg 2000 Annuity Trust I 0 0 0 0 The John S. Weinberg 2000 Family Trust 0 0 0 0 The Jonathan G. Neidich 2000 Trust 0 0 0 0 The Jonathan M. Lopatin 2000 Annuity Trust I 0 0 0 0 The Jordan Viniar 2000 Trust 0 0 0 0 The Joseph Della Rosa 2000 Annuity Trust I 0 0 0 0 The Joseph Della Rosa 2000 Family Trust 0 0 0 0 The Joseph H. Gleberman 2000 Annuity Trust I 0 0 0 0 The Joseph H. Gleberman 2000 Family Trust 0 0 0 0 The Jun Makihara 2000 Family Trust 0 0 0 0 The Karen Barlow Corrigan 2000 Trust 0 0 0 0 The Karen Rebecca Alper 2000 Trust 0 0 0 0
28 29
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Karsten Moller & Barbara Kahn-Moller Trust Jersey 0 0 0 0 The Katherine A.M. Stanton 2000 Trust 0 0 0 0 The Katheryn C. Coulson 2000 Trust 0 0 0 0 The Kathryn Margaret Wellde 2000 Trust 0 0 0 0 The Kelsey Fithian 2000 Trust 0 0 0 0 The Kenneth Litzenberger 2000 Grantor Retained Annuity Trust 0 0 0 0 The Kenneth Litzenberger Remainder Trust 0 0 0 0 The Kevin W. Kennedy 2000 Annuity Trust I 0 0 0 0 The Kevin W. Kennedy 2000 Family Trust 0 0 0 0 The Kimberly Lynn Macaione 2000 Trust 0 0 0 0 The Kimberly R. Textor 2000 Trust 0 0 0 0 The Kipp M. Nelson Trust 0 0 0 0 The Kyle F. Textor 2000 Trust 0 0 0 0 The Lauren Schiller 2000 Trust 0 0 0 0 The Lawrence R. Buchalter 2000 Annuity Trust I 0 0 0 0 The Lawrence R. Buchalter 2000 Family Trust 0 0 0 0 The Lee G. Vance 2000 Annuity Trust I 0 0 0 0 The Lee G. Vance 2000 Family Trust 0 0 0 0 The Leslie C. Tortora 2000 Annuity Trust I 0 0 0 0 Lloyd C. Blankfein 2000 Family Trust 0 0 0 0 Lloyd C. Blankfein 2000 GRAT 0 0 0 0 The Louise Rice Townsend 2000 Trust 0 0 0 0
29 30
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- M. Roch Hillenbrand Trust f/b/o C. Justin Hillenbrand New Jersey 0 0 0 0 M. Roch Hillenbrand Trust f/b/o Molly D. Hillenbrand New Jersey 0 0 0 0 The Mallory G. Neidich 2000 Trust 0 0 0 0 The Marc A. Spilker 2000 Family Trust 0 0 0 0 The Mark A. Zurack 2000 Annuity Trust I 0 0 0 0 The Mark A. Zurack 2000 Family Trust 0 0 0 0 The Mark A. Zurack 2000 Issue Trust 0 0 0 0 Mark Dehnert Living Trust Illinois 0 0 0 0 The Mark Schwartz 2000 Annuity Trust I 0 0 0 0 The Mark Tercek 2000 Annuity Trust I 0 0 0 0 The Mark Tercek 2000 Family Trust 0 0 0 0 Marks 2000 0 0 0 0 Marks 2000 (continuing trust) 0 0 0 0 The Mary Agnes Reilly Kiernan 2000 Trust 0 0 0 0 The Mary Ann Casati Trust 0 0 0 0 The Matthew D. Rogers 2000 Trust 0 0 0 0 The Matthew Peter Mortara 2000 Trust 0 0 0 0 The Maya Bettina Linden 2000 Trust 0 0 0 0 The Merritt Moore Townsend 2000 Trust 0 0 0 0 The Mesdag Family Trust Delaware 0 0 0 0 The Michael A. Price 2000 Annuity Trust I 0 0 0 0 The Michael A. Price 2000 Family Trust 0 0 0 0 The Michael D. Ryan 2000 Annuity Trust I 0 0 0 0 The Michael D. Ryan 2000 Family Trust 0 0 0 0
30 31
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Michael J. Zamkow 2000 Annuity Trust I 0 0 0 0 The Michael J. Zamkow 2000 Family Trust 0 0 0 0 The Michael P. Mortara 2000 Annuity Trust I 0 0 0 0 The Michael Paul Mortara 2000 Trust 0 0 0 0 The Michael Stecher 2000 Trust 0 0 0 0 The Milton R. Berlinski 2000 Annuity Trust I 0 0 0 0 The Mossavar-Rahmani 2000 Annuity Trust I 0 0 0 0 The Mossavar-Rahmani 2000 Family Trust 0 0 0 0 Murphy 2000 0 0 0 0 Murphy 2000 (continuing trust) 0 0 0 0 The Natalie Cailyn Rogers 2000 Trust 0 0 0 0 The Nicole Schiller 2000 Trust 0 0 0 0 The Nina B. Haydock 2000 Trust 0 0 0 0 The Peter C. Gerhard 2000 Annuity Trust I 0 0 0 0 The Peter C. Gerhard 2000 Family Trust 0 0 0 0 The Peter D. Kiernan, III 2000 Annuity Trust I 0 0 0 0 The Peter Kiernan IV 2000 Trust 0 0 0 0 The Peter S. Kraus 2000 Annuity Trust I 0 0 0 0 The Philip D. Murphy 2000 Annuity Trust I 0 0 0 0 The Philip D. Murphy 2000 Family Trust 0 0 0 0 The Philip Darivoff 2000 Annuity Trust I 0 0 0 0 The Rachel M. Darivoff 2000 Trust 0 0 0 0 The Ralph F. Rosenberg 2000 Annuity Trust I 0 0 0 0 The Ralph F. Rosenberg 2000 Family Trust 0 0 0 0
31 32
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- Randal M. Fippinger-Millennium Trust 0 0 0 0 The Randolph L. Cowen 2000 Family Trust 0 0 0 0 Rayas Trust Jersey 0 0 0 0 The Rebecca Viniar 2000 Trust 0 0 0 0 The Richard A. Friedman 2000 Annuity Trust I 0 0 0 0 The Richard A. Friedman 2000 Family Trust 0 0 0 0 The Richard A. Sapp 2000 Annuity Trust I 0 0 0 0 The Richard A. Sapp 2000 Family Trust 0 0 0 0 The Richard E. Witten 2000 Annuity Trust I 0 0 0 0 The Richard G. Sherlund 2000 Annuity Trust I 0 0 0 0 Robert A. Fippinger, Jr.-Millennium Trust 0 0 0 0 The Robert B. Litterman 2000 Annuity Trust I 0 0 0 0 The Robert B. Litterman 2000 Family Trust 0 0 0 0 The Robert B. Morris III 2000 Annuity Trust I 0 0 0 0 The Robert J. Hurst 2000 Annuity Trust I 0 0 0 0 The Robert J. Hurst 2000 Family Trust 0 0 0 0 The Robert J. Katz 2000 Annuity Trust I 0 0 0 0 The Robert J. O Shea 2000 Annuity Trust I 0 0 0 0 The Robert J. O Shea 2000 Family Trust 0 0 0 0 The Robert J. Pace 2000 Annuity Trust I 0 0 0 0 The Robert J. Pace 2000 Family Trust 0 0 0 0 The Robert K. Steel 2000 Annuity Trust I 0 0 0 0 The Robert B. Morris III 2000 Family Trust 0 0 0 0 The Robin Neustein 2000 Annuity Trust I 0 0 0 0
32 33
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Samantha Schiller 2000 Trust 0 0 0 0 The Sarah B. Lopatin 2000 Trust 0 0 0 0 The Sarah Delacy Kiernan 2000 Trust 0 0 0 0 The Sarah M. Darivoff 2000 Trust 0 0 0 0 The Sarah Rose Berlinski 2000 Trust 0 0 0 0 The Scott B. Kapnick 2000 Annuity Trust I 0 0 0 0 The Scott B. Kapnick 2000 Family Trust 0 0 0 0 Scott M. Pinkus 2000 Family Trust New Jersey 0 0 0 0 Scott M. Pinkus 2000 GRAT New Jersey 0 0 0 0 The Scott S. Prince Trust 0 0 0 0 The Stephen M. Neidich 2000 Trust 0 0 0 0 The Steven M. Heller, Jr. 2000 Trust 0 0 0 0 The Steven T. Mnuchin 2000 Annuity Trust I 0 0 0 0 The Steven T. Mnuchin 2000 Family Trust 0 0 0 0 The Stuart Mark Rothenberg 2000 Annuity Trust I 0 0 0 0 The Stuart Mark Rothenberg 2000 Family Trust 0 0 0 0 The Terence M. O Toole 2000 Annuity Trust I 0 0 0 0 The Terence M. O Toole 2000 Family Trust 0 0 0 0 The Tess Augusta Linden 2000 Trust 0 0 0 0 The Thomas K. Montag 2000 Annuity Trust I 0 0 0 0 The Thomas K. Montag 2000 Family Trust 0 0 0 0 The Tracy Richard Wolstencroft 2000 Annuity Trust I 0 0 0 0
33 34
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- The Tracy Richard Wolstencroft 2000 Family Trust 0 0 0 0 Trust for the benefit of David Ford, Jr. under Indenture of Trust B of David B. Ford dated 6/16/00 Pennsylvania 0 0 0 0 Trust for the benefit of Jamie Ford under Indenture of Trust B of David B. Ford dated as of 6/16/00 Pennsylvania 0 0 0 0 Vyrona Trust Jersey 0 0 0 0 The Walter H. Haydock 2000 Annuity Trust I 0 0 0 0 The Walter H. Haydock, Jr. 2000 Trust 0 0 0 0 The William C. Sherlund 2000 Trust 0 0 0 0 The William Keith Litzenberger 2000 Grantor Retained Annuity Trust 0 0 0 0 The William Keith Litzenberger Remainder Trust 0 0 0 0 The Zachariah Cobrinik 2000 Annuity Trust I 0 0 0 0 The Zachariah Cobrinik Family 2000 Trust 0 0 0 0 PARTNERSHIPS ALS Investment Partners, L.P. Delaware 0 0 0 0 Beech Associates, L.P. Delaware 0 0 0 0 Crestley, L.P. Delaware 0 0 0 0 Daniel G. Brennan Family Limited Partnership Illinois 0 0 0 0 Greenley Partners, L.P. Delaware 0 0 0 0 HEMPA Limited Partnership Delaware 0 0 0 0 JSS Investment Partners, L.P. Delaware 0 0 0 0 Mesdag Family Limited Partnership Delaware 0 0 0 0
34 35
ITEM 6 PLACE OF ITEM 9 ITEM 10 ORGANIZATION ITEM 7 ITEM 8 SOLE SHARED (NEW YORK SOLE VOTING SHARED DISPOSITIVE DISPOSITIVE ITEM 1 UNLESS POWER OF VOTING POWER POWER OF POWER OF NAMES OF REPORTING OTHERWISE UNCOVERED OF UNCOVERED UNCOVERED UNCOVERED PERSONS INDICATED) SHARES SHARES SHARES SHARES - ----------------------------------- ------------- ----------- ------------ ---------- ----------- Mijen Family Partnership Illinois 0 0 0 0 Opatrny Investment Partners, L.P. Delaware 0 0 0 0 Rantz GS Investment Partners, L.P. Delaware 0 0 0 0 Savitz Investment Partners, L.P. Delaware 0 0 0 0 The Litzenberger Family Limited Partnership Delaware 0 0 0 0 The Rizner Family Limited Partnership Illinois 0 0 0 0 Trott GS Investment Partners, L.P. Delaware 0 0 0 0 Tuft GS Investment Partners, L.P. Delaware 0 0 0 0 Windy Hill Investment Company II, L.P. Delaware 0 0 0 0 Winkelried Investment Partners, L.P. Delaware 0 0 0 0 CORPORATIONS Anahue Limited Jersey 0 0 0 0 Guapulo Holdings Ltd Jersey 0 0 0 0 HJS2 Limited Cayman Islands 0 0 0 0 Majix Limited Jersey 0 0 0 0 Melalula Limited Jersey 0 0 0 0 RJG Holding Company Cayman Islands 0 0 0 0 Robinelli Limited Jersey 0 0 0 0 Vyrona Holdings Limited Jersey 0 0 0 0 Zurrah Limited Jersey 0 0 0 0
35 36 This Amendment No. 5 to a Statement on Schedule 13D amends and restates in its entirety such Schedule 13D (as so amended and restated, this "Schedule"). This Amendment No. 5 is being filed principally because on August 1, 2000, certain Covered Persons agreed to sell Covered Shares in an underwritten registered public offering. Item 1. Security and Issuer This Schedule relates to the Common Stock, par value $.01 per share (the "Common Stock"), of The Goldman Sachs Group, Inc., a Delaware corporation (together with its subsidiaries and affiliates, "GS Inc."). The address of the principal executive offices of GS Inc. is 85 Broad Street, New York, New York 10004. Item 2. Identity and Background (a), (b), (c), (f) The cover page to this Schedule and Appendix A hereto contain the names of the persons ("Covered Persons") who beneficially own Common Stock subject to a Shareholders' Agreement ("Covered Shares"), dated as of May 7, 1999, to which the Covered Persons are party (as amended from time to time, the "Shareholders' Agreement"). This filing is being made on behalf of all of the Covered Persons, and their agreement that this filing may be so made is contained in the Shareholders' Agreement. This Schedule contains certain information relating to Sumitomo Bank Capital Markets, Inc. ("SBCM") and Kamehameha Activities Association ("KAA"), who may be deemed to be members of a "group" with the Covered Persons. Each Covered Person hereby disclaims beneficial ownership of the shares of Common Stock and other equity securities of GS Inc. subject to the Voting Agreements between SBCM and KAA, respectively, on the one hand, and GS Inc., on the other hand (respectively, the "SBCM Shares" and the "KAA Shares"). All information contained in this Schedule relating to SBCM and KAA has been included based upon information provided by SBCM and KAA; the separate Schedules 13D filed by SBCM and KAA and any amendments thereto should be referred to for information relating to SBCM and KAA, respectively. Appendix A hereto also provides the citizenship or place of organization of each Covered Person. Each Covered Person who is an individual (an "Individual Covered Person") is a senior professional employed or formerly employed by GS Inc. or a spouse or former spouse thereof. GS Inc. is a global investment banking and securities firm. Each of The Daniel G. Brennan Family Limited Partnership, Mark Dehnert Living Trust, Mijen Family Partnership and The Rizner Family Limited Partnership, and each other Covered Person who is not an individual (the "Estate Planning Covered Persons") is a trust, limited partnership or corporation created by an Individual Covered Person solely for estate planning purposes. The Covered Persons listed in Appendix A under the caption "Partnerships" are limited partnerships of which an Individual Covered Person is general partner. Each Estate Planning Covered Persons listed in Appendix A under the caption "Corporations" (a "Corporate Estate Planning Covered Person") is controlled by an Individual Covered Person (the "Controlling Covered Person"). The name, citizenship, business address and present principal occupation or employment of each of the directors and executive officers of each Corporate Estate Planning Covered Person (other than the Controlling Covered Person) is set forth in Annex A hereto. The business address of each Covered Person for purposes of this Schedule is: (i) in the case of entities organized in Jersey, 26 New Street, St. Helier, Jersey, JE4 3RA; (ii) in the case of entities organized in the Cayman Islands, P.O. Box 309, Ugland House, South Church Street, George Town, Grand Cayman, Cayman Islands; and (iii) in the case of all other Covered Persons, 85 Broad Street, New York, New York 10004. (d), (e) Except as described in Annex A or Annex B, during the last five years, no Covered Person or, to the best knowledge of the Covered Persons, any executive officer or director of a Covered Person, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in such Covered Person being subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration The Covered Shares have been and will be acquired by the Covered Persons in the following manner: (i) the former profit participating limited partners active in the business of The Goldman Sachs Group, L.P. ("Group L.P.") (each such former partner, a "PMD" and, collectively, the "PMDs") acquired certain Covered Shares in exchange for their interests in Group L.P. and certain of its affiliates and investee corporations; (ii) the 36 37 former owners (the "Hull Covered Persons") of Hull and Associates, L.L.C. ("Hull") acquired certain Covered Shares in exchange for their interests in Hull; (iii) certain Individual Covered Persons have acquired and will acquire beneficial ownership of certain other Covered Shares in connection with GS Inc.'s initial public offering and/or pursuant to GS Inc.'s employee compensation, benefit or similar plans; (iv) certain Individual Covered Persons (the "Transferee Covered Persons") acquired their Covered Shares from PMDs in accordance with pre-existing contractual arrangements or judicial decrees; and (v) the Estate Planning Covered Persons have acquired and will acquire beneficial ownership of their Covered Shares as contributions or gifts made by Individual Covered Persons. Covered Persons may from time to time acquire Common Stock not subject to the Shareholders' Agreement ("Uncovered Shares") for investment purposes. Such Common Stock may be acquired with personal funds of or funds borrowed by such Covered Person. Item 4. Purpose of Transactions The Individual Covered Persons, other than the Hull Covered Persons and the Transferee Covered Persons, acquired the Covered Shares in connection with the succession of GS Inc. to the business of Group L.P. and GS Inc.'s initial public offering and through certain employee compensation, benefit or similar plans of GS Inc. The Hull Covered Persons acquired the Covered Shares in connection with the acquisition by GS Inc. of Hull and through certain employee compensation, benefit or similar plans of GS Inc. The Transferee Covered Persons acquired their Covered Shares from PMDs in accordance with pre-existing contractual arrangements or judicial decrees. As a condition to the transfer of the Covered Shares, the Shareholders' Committee required that each Transferee Covered Person agree to become a party to the Shareholders' Agreement and to be bound by the Partner Transfer Restrictions referred to in Item 6 below. The Estate Planning Covered Persons acquired the Covered Shares as contributions or gifts made for estate planning purposes by Individual Covered Persons, and the provisions of the organizational documents of certain Estate Planning Covered Persons provide for the distribution of Common Stock to certain other Covered Persons. As a condition to the contribution or gift of the Covered Shares, the Shareholders' Committee required that each Estate Planning Covered Person agree to become a party to the Shareholders' Agreement and to be bound by the Partner Transfer Restrictions referred to in Item 6 below. GS Inc. has indicated in its public filings that it intends to establish a program, beginning in the fourth fiscal quarter of 2000, to permit the PMDs to sell, in a coordinated manner, a portion of their shares of Common Stock in accordance with the volume and manner of sale limitations of Rule 144 under the Securities Act. Covered Persons may from time to time acquire Uncovered Shares for investment purposes. Except as described in Item 6 and except for the acquisition by Covered Persons of Common Stock pursuant to employee compensation, benefit or similar plans of GS Inc. in the future or as described above, none of the Covered Persons has any plans or proposals which relate to or would result in their acquisition of additional Common Stock or any of the other events described in Item 4(a) through 4(j). Each Covered Person is expected to evaluate on an ongoing basis GS Inc.'s financial condition and prospects and his or her interests in and with respect to GS Inc. Accordingly, each Covered Person may change his or her plans and intentions at any time and from time to time. In particular, each Covered Person may at any time and from time to time acquire or dispose of shares of Common Stock. Item 5. Interest in Securities of the Issuer (a) Rows (11) and (13) of the cover page to this Schedule, Appendix A and Annex A are hereby incorporated by reference. Each Covered Person hereby disclaims beneficial ownership of any shares of Common Stock held by any other Covered Person and disclaims beneficial ownership of the SBCM Shares and the KAA Shares. Except as described in Annex C, none of the shares of Common Stock reported in rows (11) and (13) of the cover page to this Schedule and Appendix A are shares as to which there is a right to acquire exercisable within 60 days. (b) Rows (7) through (10) of the cover page to this Schedule, Appendix A and Annex A set forth the percentage range of Covered Shares as to which there is sole power to vote or direct the vote or to dispose or direct the disposition; the number of Uncovered Shares as to which there is sole power to vote or direct the vote or to dispose or direct the disposition; and the number of shares of Common Stock as to which there is shared power to 37 38 vote or direct the vote or to dispose or direct the disposition. The power to vote Covered Shares by Covered Persons is shared with each other Covered Person, as described below in response to Item 6. Each Covered Person hereby disclaims beneficial ownership of any shares of Common Stock held by any other Covered Person and disclaims beneficial ownership of the SBCM Shares and the KAA Shares. (c) Except as described in Annex D or previously reported on Schedule 13D, no Covered Person has effected any transactions in Common Stock in the past 60 days. (d), (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Each Covered Person listed on the cover page to this Schedule and Appendix A hereto is a party to the Shareholders' Agreement. The Shareholders' Agreement, and forms of the Counterparts to the Shareholders' Agreement executed by or on behalf of the Estate Planning Covered Persons, certain Hull Covered Persons and the Transferee Covered Persons, are filed as Exhibits to this Schedule and the following summary of the terms of the Shareholders' Agreement is qualified in its entirety by reference thereto. References to the "board of directors" are to the board of directors of The Goldman Sachs Group, Inc. The Covered Shares include generally all Common Stock acquired or to be acquired from GS Inc. by the Covered Persons. Covered Shares include: shares of Common Stock acquired by the PMDs in exchange for their interests in Group L.P. and certain of its affiliates; shares of Common Stock acquired by the Hull Covered Persons in exchange for their interests in Hull; shares of Common Stock acquired or to be acquired through the grant of restricted stock units, stock options and interests in a defined contribution plan (except for certain Uncovered Shares as specified in Appendix A); shares of Common Stock acquired by the Transferee Covered Persons in accordance with pre-existing contractual arrangements or judicial decrees; shares of Common Stock acquired or to be acquired by Estate Planning Covered Persons from Individual Covered Persons for estate planning purposes and shares of Common Stock to be distributed by Estate Planning Covered Persons to Individual Covered Persons or to other Estate Planning Covered Persons; and, unless otherwise determined by the board of directors and the Shareholders' Committee, any shares of Common Stock acquired or to be acquired by the Covered Persons from GS Inc. through any other employee compensation, benefit or similar plan. Covered Shares do not include any shares of Common Stock purchased or to be purchased by a Covered Person in the open market or in a subsequent underwritten public offering. TRANSFER RESTRICTIONS Each Individual Covered Person (other than the Transferee Covered Persons and, with respect to the shares of Common Stock received in exchange for their interests in Hull, the Hull Covered Persons) has agreed in the Shareholders' Agreement, among other things, to retain beneficial ownership of Covered Shares at least equal to 25% of the cumulative number of Covered Shares beneficially owned by him or her at the time he or she became a Covered Person or acquired by him or her thereafter and with no credit for dispositions (the "General Transfer Restrictions") for so long as he or she is a Covered Person and an employee of GS Inc. (an "Employee Covered Person"). The PMDs will also be subject to limitations on their ability to transfer Covered Shares received in connection with the succession of GS Inc. to the business of Group L.P. These restrictions will also apply to the Covered Shares acquired by the Hull Covered Persons in exchange for their interests in Hull. Under these restrictions, each such PMD and Hull Covered Person has agreed not to transfer such Covered Shares until May 7, 2002, the third anniversary of the date of GS Inc.'s initial public offering of its Common Stock (the "Partner Transfer Restrictions" and, together with the General Transfer Restrictions, the "Transfer Restrictions"). The Partner Transfer Restrictions will lapse as to such Covered Shares in equal installments on each of May 7, 2002, May 7, 2003 and May 7, 2004. The Covered Shares held by each Estate Planning Covered Person and Transferee Covered Person are subject to the same Partner Transfer Restrictions that applied to such Covered Shares prior to such Covered Person's acquisition thereof. The Transfer Restrictions applicable to an Individual Covered Person (and his or her Estate Planning Covered Persons) terminate upon the death of the Individual Covered Person. 38 39 WAIVERS Except in the case of a third-party tender or exchange offer, the Partner Transfer Restrictions may be waived or terminated at any time by the Shareholders' Committee described below under "Information Regarding the Shareholders' Committee". The Shareholders' Committee also has the power to waive the Transfer Restrictions to permit Covered Persons to: participate as sellers in underwritten public offerings of Common Stock and tender and exchange offers and share repurchase programs by GS Inc.; transfer Covered Shares to charities, including charitable foundations; transfer Covered Shares held in employee benefit plans; and transfer Covered Shares in specific transactions (for example, to immediate family members and trusts) or other circumstances. The Shareholders' Committee permitted the transfers of Covered Shares to the Estate Planning Covered Persons and the Transferee Covered Persons, on the condition that each Estate Planning Covered Person and Transferee Covered Person agree to become a party to the Shareholders' Agreement and to be bound by the Partner Transfer Restrictions. The Shareholders' Committee will waive the Partner Transfer Restrictions to permit the sale of Covered Shares by certain Covered Persons in a registered underwritten public offering, as described in Annex D. On July 31, 2000, the Shareholders' Committee waived the Partner Transfer Restrictions solely to permit certain Covered Persons to pledge a portion of their Covered Shares to obtain approximately $400,000,000 in loan commitments to make investments from time to time in certain merchant banking funds sponsored by GS Inc. The loan commitments are for five years, may be drawn upon from time to time and generally require that any loans be collateralized by shares of Common Stock with a market value four times that of the amount borrowed. In the case of a third-party tender or exchange offer, the Transfer Restrictions may be waived or terminated: if the board of directors is recommending acceptance or is not making any recommendation with respect to acceptance of the tender or exchange offer, by a majority of the Voting Interests (as defined below); or if the board of directors is recommending rejection of the tender or exchange offer, by 66 2/3% of the outstanding Voting Interests. In the case of a tender or exchange offer by GS Inc., a majority of the outstanding Voting Interests may also elect to waive or terminate the Transfer Restrictions. VOTING Prior to any vote of the shareholders of GS Inc., the Shareholders' Agreement requires a separate, preliminary vote of the Voting Interests on each matter upon which a vote of the shareholders is proposed to be taken (the "Preliminary Vote"). Each Covered Share held by an Employee Covered Person and each other Covered Share subject to the Partner Transfer Restrictions will be voted in accordance with the majority of the votes cast by the Voting Interests in the Preliminary Vote. In elections of directors, each Covered Share will be voted in favor of the election of those persons receiving the highest numbers of votes cast by the Voting Interests in the Preliminary Vote. "Voting Interests" are Covered Shares beneficially owned by all Covered Persons through December 31, 2000 and thereafter are Covered Shares beneficially owned by all Employee Covered Persons. OTHER RESTRICTIONS The Shareholders' Agreement also prohibits the Covered Persons from engaging in certain activities relating to any securities of GS Inc. with any person who is not a Covered Person or a director, officer or employee of GS Inc. ("Restricted Persons"). Among other things, a Covered Person may not: participate in a proxy solicitation to or with a Restricted Person; deposit any Covered Shares in a voting trust or subject any Covered Shares to any voting agreement or arrangement that includes any Restricted Person; form, join or in any way participate in a "group" with any Restricted Person; or together with any Restricted Person, propose certain transactions with GS Inc. or seek the removal of any directors of GS Inc. or any change in the composition of the board of directors. TERM, AMENDMENT AND CONTINUATION The Shareholders' Agreement is to continue in effect until the earlier of January 1, 2050 and the time it is terminated by the vote of 66 2/3% of the outstanding Voting Interests. The Partner Transfer Restrictions will not 39 40 terminate upon the expiration or termination of the Shareholders' Agreement unless previously waived or terminated or unless subsequently waived or terminated by the board of directors. The Shareholders' Agreement may generally be amended at any time by a majority of the outstanding Voting Interests. Unless otherwise terminated, in the event of any transaction in which a third party succeeds to the business of GS Inc. and in which Covered Persons hold securities of the third party, the Shareholders' Agreement will remain in full force and effect as to the securities of the third party, and the third party shall succeed to the rights and obligations of GS Inc. under the Shareholders' Agreement. INFORMATION REGARDING THE SHAREHOLDERS' COMMITTEE The Shareholders' Committee shall at any time consist of each of those individuals who are both Employee Covered Persons and members of the board of directors and who agree to serve as members of the Shareholders' Committee. If there are less than three individuals who are both Employee Covered Persons and members of the board of directors and who agree to serve as members of the Shareholders' Committee, the Shareholders' Committee shall consist of each such individual plus such additional individuals who are Employee Covered Persons and who are selected pursuant to procedures established by the Shareholders' Committee as shall assure a Shareholders' Committee of not less than three members who are Employee Covered Persons. Currently, Henry M. Paulson, Jr., Robert J. Hurst, John A. Thain and John L. Thornton are the members of the Shareholders' Committee. VOTING AGREEMENTS Both SBCM and KAA have, in separate voting agreements, each dated April 30, 1999 (each, a "Voting Agreement"), agreed to vote their shares of Common Stock and all other voting securities of GS Inc. in the same manner as a majority of the shares of Common Stock held by the managing directors of GS Inc. are voted for so long as they hold voting securities of GS Inc. It is expected that for so long as the Shareholders' Agreement remains in effect, the Voting Agreements will result in the shares of Common Stock owned by SBCM and KAA being voted in the same manner as the Covered Shares. The Covered Persons are not parties to the Voting Agreements, and the Voting Agreements are not enforceable by the Covered Persons, will continue to exist independent of the existence of the Shareholders' Agreement and may be amended, waived or canceled by GS Inc. without any consent or approval of the Covered Persons. The Voting Agreements are filed as exhibits to this Schedule and the foregoing summary of these agreements is qualified in its entirety by reference thereto. Each Covered Person hereby disclaims beneficial ownership of the SBCM Shares and the KAA Shares. PLEDGE AGREEMENTS Each PMD has pledged (the "IPO Pledge") to GS Inc. Common Stock or other assets with an initial value equal to $15 million for each such person who initially serves on the board of directors, the Management Committee or the Partnership Committee of GS Inc. and $10 million for each other such person. This pledge secures the liquidated damages provision of a noncompetition agreement which each such person has entered into with GS Inc. The form of agreement relating to noncompetition and other covenants and the form of pledge agreement, as amended, are filed as exhibits to this Schedule and the foregoing summary of these agreements is qualified in its entirety by reference thereto. In connection with the transfers to the Corporate Estate Planning Covered Persons, the IPO Pledge was replaced with a guarantee and pledge agreement that was entered into by each Corporate Estate Planning Covered Person. In addition, each Controlling Covered Person was required to pledge the capital stock of the Corporate Estate Planning Covered Person to GS Inc. in order to further secure the Controlling Covered Person's obligations under the noncompetition agreement. The forms of the pledge agreements are filed as exhibits to this Schedule and the foregoing summary of these agreements is qualified in its entirety by reference thereto. REGISTRATION RIGHTS INSTRUMENT FOR CHARITABLE DONATIONS In connection with the donation of shares of Common Stock to charitable organizations discussed in footnote 4 on the cover page to this Schedule, GS Inc. entered into a Registration Rights Instrument and Supplemental Registration Rights Instrument (the "Charitable Supplement"). The following is a description of the 40 41 Registration Rights Instrument, as supplemented by the Charitable Supplement. The Registration Rights Instrument and the Charitable Supplement are filed as Exhibits to this Schedule, and the following summary of these agreements is qualified in its entirety by reference thereto. Pursuant to the Registration Rights Instrument and the Charitable Supplement, GS Inc. has agreed to register the donated shares of Common Stock for resale by charitable foundations and public charities. GS Inc. has agreed in the Registration Rights Instrument and the Charitable Supplement to pay all of the fees and expenses relating to the offering by the charitable organizations, other than any agency fees and commissions or underwriting commissions or discounts or any transfer taxes incurred by the charitable organizations in connection with their resales. GS Inc. also has agreed to indemnify the charitable organizations against certain liabilities, including those arising under the Securities Act. GS Inc. may amend the Registration Rights Instrument and the Charitable Supplement in any manner that it deems appropriate, without the consent of any charitable organization. However, GS Inc. may not make any amendment that would cause the shares of Common Stock to fail to be "qualified appreciated stock" within the meaning of Section 170 of the Internal Revenue Code. In addition, GS Inc. may not make any amendment that would materially and adversely affect the rights of any charitable organization without the consent of a majority of the materially and adversely affected charitable organizations. REGISTRATION RIGHTS INSTRUMENT FOR EMPLOYEE MANAGING DIRECTORS In connection with the sale by certain Covered Persons (the "Employee Managing Directors") of shares of Common Stock acquired from GS Inc. pursuant to the terms of restricted stock units, GS Inc. entered into a Supplemental Registration Rights Instrument (the "EMD Supplement"), which supplements the Registration Rights Instrument referred to above. The following is a description of the Registration Rights Instrument, as supplemented by the EMD Supplement. The Registration Rights Instrument and the EMD Supplement are filed as Exhibits to this Schedule, and the following summary of these agreements is qualified in its entirety by reference thereto. Pursuant to the Registration Rights Instrument and the EMD Supplement, GS Inc. has agreed to pay all of the fees and expenses relating to the registered offering of shares of Common Stock held by the Employee Managing Directors, other than any agency fees and commissions or underwriting commissions or discounts or any transfer taxes incurred by the Employee Managing Directors in connection with the sales. GS Inc. also has agreed to indemnify the Employee Managing Directors against certain liabilities, including those arising under the Securities Act. UNDERWRITING AGREEMENTS AND REGISTRATION RIGHTS INSTRUMENT FOR REGISTERED SECONDARY OFFERING In connection with the sale by certain Covered Persons of shares of Common Stock in a registered underwritten public offering, as described in Annex D hereto, GS Inc. entered into three Underwriting Agreements and a Supplemental Registration Rights Instrument (the "Secondary Offering Supplement"), which supplements the Registration Rights Instrument referred to above. The following is a description of the Underwriting Agreements and the Registration Rights Instrument, as supplemented by the Secondary Offering Supplement. The Underwriting Agreements, the Registration Rights Instrument and the Secondary Offering Supplement are filed as Exhibits to this Schedule, and the following summary of these agreements is qualified in its entirety by reference thereto. On August 1, 2000, the Covered Persons specified in the third table in Annex D (the "Selling Stockholders") entered into the Underwriting Agreements with the underwriters listed therein (the "Underwriters"). Under the Underwriting Agreements, the Selling Stockholders have severally agreed to sell an aggregate of 16,140,413 Covered Shares to the Underwriters, at $99.75 per share, for settlement on August 7, 2000. The Selling Stockholders have also granted the Underwriters the option to purchase up to an additional 5,908,457 Covered Shares, at $99.75 per share, at any time prior to August 31, 2000. Pursuant to the Registration Rights Instrument and the Secondary Offering Supplement, GS Inc. has agreed to register certain shares of Common Stock for sale by the Selling Stockholders. GS Inc. has agreed in the Underwriting Agreements, the Registration Rights Instrument and the Secondary Offering Supplement to pay all of the fees and expenses relating to the offering by the Selling Stockholders, other than any agency fees and 41 42 commissions or underwriting commissions or discounts or any transfer taxes incurred by the Selling Stockholders in connection with their sales. GS Inc. has agreed in the Secondary Offering Supplement to indemnify the Selling Stockholders against certain liabilities, including those arising under the Securities Act. 42 43 Item 7. Material to be Filed as Exhibits Exhibit Description A. Shareholders' Agreement, dated as of May 7, 1999 (incorporated by reference to Exhibit A to the Schedule 13D filed May 17, 1999 (File No. 005-56295) (the "Initial Schedule 13D")). B. Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., The Trustees of the Estate of Bernice Pauahi Bishop and Kamehameha Activities Association (incorporated by reference to Exhibit B to the Initial Schedule 13D). C. Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., The Sumitomo Bank, Limited and Sumitomo Bank Capital Markets, Inc. (incorporated by reference to Exhibit C to the Initial Schedule 13D). D. Form of Agreement Relating to Noncompetition and Other Covenants (incorporated by reference to Exhibit 10.20 to the registration statement on Form S-1 (File No. 333-74449) filed by The Goldman Sachs Group, Inc.). E. Form of Pledge Agreement (the "IPO Pledge Agreement") (incorporated by reference to Exhibit 10.21 to the registration statement on Form S-1 (File No. 333-74449) filed by The Goldman Sachs Group, Inc.). F. Form of Amendment No. 1 to the IPO Pledge Agreement (filed as Exhibit E), dated July 10, 2000. (incorporated by reference to Exhibit F to Amendment No. 4 to the Initial Schedule 13D, filed July 11, 2000 (File No. 005-56295)) G. Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit G to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). H. Supplemental Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit H to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). I. Form of Counterpart to Shareholders' Agreement for former profit participating limited partners of The Goldman Sachs Group, L.P. (incorporated by reference to Exhibit I to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). J. Form of Counterpart to Shareholders' Agreement for former retired limited partners of The Goldman Sachs Group, L.P. who are currently managing directors of The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit J to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). K. Form of Counterpart to Shareholders' Agreement for non-individual former owners of Hull and Associates, L.L.C. (incorporated by reference to Exhibit K to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). L. Form of Counterpart to Shareholders' Agreement for non-U.S. corporations (incorporated by reference to Exhibit L to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). M. Form of Counterpart to Shareholders' Agreement for non-U.S. trusts (incorporated by reference to Exhibit M to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). 43 44 N. Form of Guarantee and Pledge Agreement for non-U.S. corporations (incorporated by reference to Exhibit N to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). O. Form of Pledge Agreement for shareholders of non-U.S. corporations (incorporated by reference to Exhibit O to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). P. Form of Pledge Agreement for shareholders of non-U.S. corporations (Jersey version) (incorporated by reference to Exhibit P to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). Q. Form of Counterpart to Shareholders' Agreement for Transferee Covered Persons. R. Supplemental Registration Rights Instrument, dated as of June 19, 2000. S. Supplemental Registration Rights Instrument, dated as of July 31, 2000. T. Underwriting Agreement (U.S. Version), dated as of August 1, 2000. U. Underwriting Agreement (International Version), dated as of August 1, 2000. V. Underwriting Agreement (Asia/Pacific Version), dated as of August 1, 2000. W. Power of Attorney (incorporated by reference to Exhibit I to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). 44 45 ANNEX A INFORMATION REQUIRED AS TO EXECUTIVE OFFICERS AND DIRECTORS OF CORPORATE COVERED PERSONS
CONVICTIONS OR BENEFICIAL VIOLATIONS OF OWNERSHIP OF FEDERAL OR THE COMMON STATE LAWS STOCK OF THE PRESENT WITHIN THE LAST GOLDMAN SACHS NAME CITIZENSHIP BUSINESS ADDRESS EMPLOYMENT FIVE YEARS GROUP, INC. - ----------------- ----------- --------------------- ----------------------- --------------- -------------------- Steven M. Bunson USA 85 Broad Street Managing Director, The None Covered Person, so New York, NY Goldman Sachs Group, ownership is as set 10004 Inc. forth in or incorporated into Item 5 above. Russell E. USA 85 Broad Street Managing Director, The None Covered Person, so Makowsky New York, NY Goldman Sachs Group, ownership is as set 10004 Inc. forth in or incorporated into Item 5 above. Michael H. UK 26 New Street, Partner, None None Richardson St. Helier, Jersey, Bedell Cristin JE4 3RA
45 46 ANNEX B ITEMS 2(D) AND 2(E). INFORMATION REQUIRED AS TO CERTAIN PROCEEDINGS None. 46 47 ANNEX C ITEM 5(A). DESCRIPTION OF SHARES AS TO WHICH THERE IS A RIGHT TO ACQUIRE EXERCISABLE WITHIN 60 DAYS SBCM holds 7,440,362 shares of Nonvoting Common Stock which, although immediately convertible into Common Stock, cannot currently be converted by SBCM due to restrictions imposed under the Bank Holding Company Act of 1956, as amended. On September 24, 2000, 20,709 shares of Common Stock will be delivered pursuant to the terms of an equal number of restricted stock units, and 32,046 shares of Common Stock will be delivered upon the exercise of stock options. These shares of Common Stock will be Covered Shares. 47 48 ANNEX D ITEM 5(C). DESCRIPTION OF ALL TRANSACTIONS IN THE COMMON STOCK EFFECTED BY THE COVERED PERSONS IN THE PAST 60 DAYS AND NOT PREVIOUSLY REPORTED ON SCHEDULE 13D On July 12, 2000, the transfer restrictions on an aggregate of 165,750 shares of Common Stock were waived to permit the donation of these Covered Shares by 10 Covered Persons to CAF Nominees Ltd., a public charitable institute. The following sales of shares of Common Stock were made by the following Covered Persons through Goldman, Sachs & Co. for cash on the New York Stock Exchange:
COVERED PERSON TRADE DATE NUMBER OF SHARES PRICE PER SHARE ----------------------- ---------- ---------------- --------------- Jaime E. Yordan 7/12/00 12,500 $100.13 Jaime E. Yordan 7/13/00 10,000 103.56 John P. Curtin, Jr. 7/20/00 10,000 104.16
The following sales of shares of Common Stock were made by the following Covered Persons through ChaseMellon Financial Services, L.L.C. for cash on the New York Stock Exchange:
COVERED PERSON TRADE DATE NUMBER OF SHARES PRICE PER SHARE - ---------------------------------- ---------------- ------------------ ----------------- Charles K. Brown 7/10/00 1,978 $95.78 Matthieu B. Duncan 7/10/00 249 95.78 Matthieu B. Duncan 7/10/00 987 95.78 Matthias K. Frisch 7/10/00 700 95.78 Robert G. Hottensen, Jr. 7/10/00 1,700 95.78 Ewan M. Kirk 7/10/00 230 95.78 James P. Ziperski 7/10/00 560 95.78 John S. Barakat 7/11/00 2,072 97.66 Timothy B. Bunting 7/11/00 1,972 97.66 Lawrence V. Calcano 7/11/00 3,239 97.66 Carmine C. Capossela 7/11/00 1,074 97.66 Calvin R. Carver, Jr. 7/11/00 400 97.66 Andrew C. Devenport 7/11/00 459 97.66 Alexander S. Ehrlich 7/11/00 1,300 97.66 David J. Greenwald 7/11/00 600 97.66 Timothy E. Hodgson 7/11/00 1,717 97.66 David A. Kaplan 7/11/00 112 97.66 David A. Kaplan 7/11/00 1,265 97.66 Peggy A. Lamb 7/11/00 978 97.66 John J. Lauto 7/11/00 991 97.66 Antigone Loudiadis 7/11/00 1,799 97.66 John F. W. Rogers 7/11/00 1,000 97.66 Katsunori Sago 7/11/00 2,985 97.66 J. Michael Sanders 7/11/00 1,000 97.66 Mitchell I. Scherzer 7/11/00 750 97.66 Harvey M. Schwartz 7/11/00 1,061 97.66 Robert J. Shea, Jr. 7/11/00 1,420 97.66 Linda J. Slotnick 7/11/00 1,307 97.66 Andrew J. Stuart 7/11/00 400 97.66 Andrew J. Stuart 7/11/00 1,000 97.66 Richard M. Young 7/11/00 693 97.66
48 49
COVERED PERSON TRADE DATE NUMBER OF SHARES PRICE PER SHARE - ---------------------------------- ---------------- ------------------ ----------------- James P. Ziperski 7/11/00 544 97.66 Calvin R. Carver, Jr. 7/12/00 400 102.09 John J. Rafter 7/12/00 1,213 102.09 John J. Rafter 7/12/00 896 102.09 J. Michael Sanders 7/12/00 642 102.09 Allen W. Sinsheimer 7/12/00 1,165 102.09 Allen W. Sinsheimer 7/12/00 352 102.09 Rory T. Tobin 7/12/00 200 102.09 Daisuke Toki 7/12/00 800 102.09 James P. Ziperski 7/12/00 500 102.09 Peter C. Aberg 7/13/00 1,250 101.91 Charles W.A. Bott 7/13/00 1,978 101.91 Douglas W. Caterfino 7/13/00 236 101.91 Robert J. Christie 7/13/00 1,000 101.91 Simon P. Dingemans 7/13/00 1,370 101.91 William C. Dudley 7/13/00 362 101.91 John E. Eisenberg 7/13/00 140 101.91 Christopher Grigg 7/13/00 1,350 101.91 Daniel E. Holland III 7/13/00 1,000 101.91 Rustom N. Khandalavala 7/13/00 1,000 101.91 Jacques Martin 7/13/00 1,285 101.91 Jeffrey M. Moslow 7/13/00 1,500 101.91 Trevor P. Nash 7/13/00 1,624 101.91 Joseph Ravitch 7/13/00 1,000 101.91 Harvey M. Schwartz 7/13/00 500 101.91 Rory T. Tobin 7/13/00 200 101.91 Rory T. Tobin 7/13/00 213 101.91 John S. Willian 7/13/00 1,000 101.91 Lay Pheng Ang 7/14/00 1,000 104.66 Calvin R. Carver, Jr. 7/14/00 400 104.66 Matthew S. Darnall 7/14/00 750 104.66 Matthias K. Frisch 7/14/00 200 104.66 Bruce M. Larson 7/14/00 1,050 104.66 Richard J. Markowitz 7/14/00 1,741 104.66 Amos Meron 7/14/00 1,343 104.66 Kurt C. Mobley 7/14/00 2,000 104.66 Jeffrey M. Moslow 7/14/00 720 104.66 Paul S. Schapira 7/14/00 206 104.66 Paul S. Schapira 7/14/00 294 104.66 Philippe J. Altuzarra 7/17/00 3,110 101.36 Patrick Y. Baune 7/17/00 1,080 101.36 Martin R. Devenish 7/17/00 668 101.36 Davide G. Erro 7/17/00 652 101.36 Davide G. Erro 7/17/00 959 101.36 Bruce J. Evans 7/17/00 1,000 101.36 Nobumichi Hattori 7/17/00 1,414 101.36 R. Mark Keating 7/17/00 639 101.36 Gregory T. Mount 7/17/00 962 101.36 Melissa B. Patrusky 7/17/00 1,414 101.36 David M. Weil 7/17/00 1,706 101.36 Xiang-Dong Yang 7/17/00 1,618 101.36 Robert A. Beckwitt 7/18/00 1,256 103.10 James J. Birch 7/18/00 1,000 103.10 Calvin R. Carver, Jr. 7/18/00 300 103.10
49 50
COVERED PERSON TRADE DATE NUMBER OF SHARES PRICE PER SHARE - ---------------------------------- ---------------- ------------------ ----------------- David K. Kaugher 7/18/00 300 103.10 Andrew D. Learoyd 7/18/00 1,246 103.10 Stephen J. McGuinness 7/18/00 2,038 103.10 Andrea Ponti 7/18/00 1,093 103.10 Andrew J. Stuart 7/18/00 618 103.10 Andrew J. Stuart 7/18/00 958 103.10 Kenneth W. Willman 7/18/00 121 103.10 Kenneth W. Willman 7/18/00 213 103.10 Paolo Zannoni 7/18/00 1,974 103.10 Paolo Zannoni 7/18/00 843 103.10 Michael S. Burton 7/19/00 1,571 101.14 Richard M. Campbell-Breeden 7/19/00 1,454 101.14 Stephen C. Fitzgerald 7/19/00 728 101.14 Stephen C. Fitzgerald 7/19/00 839 101.14 Isabelle Hayen 7/19/00 1,086 101.14 Isabelle Hayen 7/19/00 1,099 101.14 Mark M. Jacobs 7/19/00 1,775 101.14 Richard Katz 7/19/00 1,345 101.14 R. Mark Keating 7/19/00 1,000 101.14 Mark E. Leydecker 7/19/00 1,376 101.14 Richard J. Lieb 7/19/00 2,083 101.14 James E. Milligan 7/19/00 71 101.14 Goran V. Puljic 7/19/00 1,543 101.14 Paul S. Schapira 7/19/00 523 101.14 Mark F. Slaughter 7/19/00 545 101.14 John H. Taylor 7/19/00 823 101.14 Rory T. Tobin 7/19/00 200 101.14 James J. Birch 7/20/00 1,533 103.06 Calvin R. Carver, Jr. 7/20/00 400 103.06 Robert J. Christie 7/20/00 1,424 103.06 Marc I. Cohen 7/20/00 2,005 103.06 Matthew T. Fremont-Smith 7/20/00 1,540 103.06 Charles G. R. Manby 7/20/00 2,294 103.06 Warwick M. Negus 7/20/00 51 103.06 Warwick M. Negus 7/20/00 904 103.06 P. Sheridan Schechner 7/20/00 1,500 103.06 Mark F. Slaughter 7/20/00 980 103.06 Michael M. Smith 7/20/00 2,197 103.06 Steven H. Strongin 7/20/00 460 103.06 John Tumilty 7/20/00 595 103.06 Carl-Georg Bauer-Schlichtegroll 7/21/00 1,129 103.68 Stuart N. Bernstein 7/21/00 503 103.68 Randall A. Blumenthal 7/21/00 1,182 103.68 Virginia E. Carter 7/21/00 1,274 103.68 Neil D. Crowder 7/21/00 1,092 103.68 Matthias K. Frisch 7/21/00 800 103.68 Arthur J. Hass 7/21/00 1,000 103.68 Teresa E. Holliday 7/21/00 193 103.68 Robert D. Hormats 7/21/00 1,164 103.68 Thomas B. Lewis, Jr. 7/21/00 500 103.68 Jorge O. Mariscal 7/21/00 1,000 103.68 Andrea Ponti 7/21/00 876 103.68 Kevin A. Quinn 7/21/00 1,491 103.68 Richard P. Simon 7/21/00 1,966 103.68
50 51
COVERED PERSON TRADE DATE NUMBER OF SHARES PRICE PER SHARE - ---------------------------------- ---------------- ------------------ ----------------- Ravi M. Singh 7/21/00 1,472 103.68 Judah C. Sommer 7/21/00 1,231 103.68 Todd A. Williams 7/21/00 1,691 103.68
Each of the following Covered Persons has agreed in the Underwriting Agreements referred to in Item 6 above to sell to the Underwriters, on August 7, 2000, the number of shares of Common Stock listed opposite such Covered Person's name at a price of $99.75 per share.
NUMBER OF NUMBER OF SHARES, SHARES, ASSUMING ASSUMING NO THE UNDERWRITERS EXERCISE OF THE EXERCISE THEIR UNDERWRITERS' OPTIONS TO OPTIONS TO PURCHASE PURCHASE COVERED PERSON ADDITIONAL SHARES ADDITIONAL SHARES ---------------------------------------- ------------------- ------------------ Bradley I. Abelow 37,064 50,632 Andrew M. Alper 38,840 53,058 Armen A. Avanessians 109,564 149,671 David Baum 38,109 52,059 Ron E. Beller 76,309 104,243 Milton R. Berlinski 61,497 84,009 Lloyd C. Blankfein 194,200 265,290 David W. Blood 64,733 88,430 Peter L. Briger, Jr. 78,980 107,893 Richard J. Bronks 38,553 52,665 Lawrence R. Buchalter 72,361 98,850 Christopher J. Carrera 38,172 52,145 Mary Ann Casati 38,193 52,174 Zachariah Cobrinik 101,542 138,713 Gary D. Cohn 133,875 182,882 Christopher A. Cole 97,100 132,645 Carlos A. Cordeiro 141,577 193,404 Henry Cornell 66,941 91,445 Jon S. Corzine 411,668 562,366 Frank L. Coulson, Jr. 152,123 207,811 Randolph L. Cowen 69,709 95,228 Timothy D. Dattels 72,406 98,911 Gavyn Davies 219,572 299,949 David A. Dechman 37,937 51,824 Robert V. Delaney, Jr. 113,676 155,289 Alexander C. Dibelius 24,481 33,442 John O. Downing 129,467 176,860 C. Steven Duncker 48,550 66,323 Glenn P. Earle 72,332 98,811 Paul S. Efron 38,840 53,058 Pieter Maarten Feenstra 40,216 54,938 Lawton W. Fitt 112,455 153,621 David B. Ford 71,207 97,273 Edward C. Forst 32,367 44,215 Christopher G. French 39,391 53,811 Richard A. Friedman 226,567 309,505 Joseph D. Gatto 113,267 154,730 Peter C. Gerhard 135,070 184,515 Jeffrey B. Goldenberg 25,524 34,867
51 52
NUMBER OF NUMBER OF SHARES, SHARES, ASSUMING ASSUMING NO THE UNDERWRITERS EXERCISE OF THE EXERCISE THEIR UNDERWRITERS' OPTIONS TO OPTIONS TO PURCHASE PURCHASE COVERED PERSON ADDITIONAL SHARES ADDITIONAL SHARES ---------------------------------------- ------------------- ------------------ Jacob D. Goldfield 205,203 280,321 Amy O. Goodfriend 25,893 35,372 Andrew M. Gordon 32,367 44,215 Geoffrey T. Grant 68,904 94,128 Joseph D. Gutman 46,940 64,123 Robert S. Harrison 79,110 108,069 Thomas J. Healey 142,100 194,118 Sylvain M. Hefes 9,440 67,806 David B. Heller 64,733 88,430 Mary C. Henry 71,094 97,119 Jacquelyn M. Hoffman-Zehner 55,658 76,032 Fern Hurst 32,367 44,215 Robert J. Hurst 184,490 252,026 Timothy J. Ingrassia 39,492 53,948 Reuben Jeffery III 143,700 196,304 Stefan J. Jentzsch 36,420 49,752 Barry A. Kaplan 71,228 97,302 Robert J. Katz 178,016 243,183 Kevin W. Kennedy 209,289 285,902 Douglas W. Kimmelman 69,610 95,092 Bradford C. Koenig 79,039 107,973 Jonathan L. Kolatch 84,177 114,992 David G. Lambert 56,251 76,843 Thomas D. Lasersohn 38,566 52,683 Matthew G. L'Heureux 37,545 51,289 Lawrence H. Linden 132,344 180,791 Robert Litterman 106,951 146,102 Robert H. Litzenberger 38,806 53,012 Jonathan M. Lopatin 93,992 128,399 Michael R. Lynch 168,307 229,918 Ronald G. Marks 72,561 99,123 Eff W. Martin 191,440 261,519 John P. McNulty 214,876 293,535 E. Scott Mead 122,993 168,017 T. Willem Mesdag 32,367 44,215 Eric M. Mindich 134,386 183,581 Steven T. Mnuchin 135,930 185,689 Karsten N. Moller 23,149 49,926 Thomas K. Montag 132,233 180,639 Robert B. Morris III 169,820 231,986 Michael Mortara 254,868 348,167 Sharmin Mossavar-Rahmani 113,283 154,753 Edward A. Mule 113,283 154,753 Thomas S. Murphy, Jr. 38,840 53,058 Avi M. Nash 38,840 53,058 Daniel M. Neidich 261,904 357,778 Kipp M. Nelson 86,543 118,223 Robin Neustein 174,061 237,779
52 53
NUMBER OF NUMBER OF SHARES, SHARES, ASSUMING ASSUMING NO THE UNDERWRITERS EXERCISE OF THE EXERCISE THEIR UNDERWRITERS' OPTIONS TO OPTIONS TO PURCHASE PURCHASE COVERED PERSON ADDITIONAL SHARES ADDITIONAL SHARES ---------------------------------------- ------------------- ------------------ Suzanne M. Nora Johnson 139,532 190,610 Michael E. Novogratz 37,064 50,632 Terence J. O'Neill 130,590 178,395 Timothy J. O'Neill 152,771 208,695 Donald C. Opatrny, Jr. 196,140 267,940 Robert J. O'Shea 135,423 184,996 Greg M. Ostroff 39,123 53,444 Robert J. Pace 37,417 51,113 Gregory K. Palm 166,593 227,577 Scott M. Pinkus 180,004 245,897 John J. Powers 161,833 221,075 Michael A. Price 38,648 52,795 Scott Prince 38,184 52,162 Stephen D. Quinn 136,339 186,248 Michael G. Rantz 122,086 166,777 Girish V. Reddy 57,254 78,213 Arthur J. Reimers III 149,929 204,813 James P. Riley, Jr. 182,446 249,234 Simon M. Robertson 111,876 152,830 J. David Rogers 80,917 110,538 Emmanuel Roman 0 3,444 Ralph F. Rosenberg 37,108 50,693 Stuart M. Rothenberg 78,900 107,782 Michael S. Rubinoff 38,488 52,577 Richard M. Ruzika 37,007 50,554 Jeri Lynn Ryan 21,658 29,587 Michael D. Ryan 32,367 44,215 Joseph Sassoon 121,251 165,637 Muneer A. Satter 68,532 93,619 Jonathan S. Savitz 37,930 51,816 Peter Savitz 101,684 138,908 Howard B. Schiller 79,212 108,208 Antoine Schwartz 40,457 55,267 Eric S. Schwartz 133,528 182,408 Charles B. Seelig, Jr. 135,368 184,922 Steven M. Shafran 56,504 77,188 Richard G. Sherlund 112,714 153,974 Michael S. Sherwood 129,113 176,376 Howard A. Silverstein 89,332 122,033 Dinakar Singh 37,916 51,796 Christian J. Siva-Jothy 35,603 48,637 Cody J Smith 95,172 130,011 Jonathan S. Sobel 37,831 51,680 Marc A. Spilker 70,508 96,319 Daniel W. Stanton 119,757 163,596 Esta E. Stecher 98,590 134,681 Cathrine S. Steck 29,130 39,794 Fredric E. Steck 38,840 53,058
53 54
NUMBER OF NUMBER OF SHARES, SHARES, ASSUMING ASSUMING NO THE UNDERWRITERS EXERCISE OF THE EXERCISE THEIR UNDERWRITERS' OPTIONS TO OPTIONS TO PURCHASE PURCHASE COVERED PERSON ADDITIONAL SHARES ADDITIONAL SHARES ---------------------------------------- ------------------- ------------------ Gene T. Sykes 129,467 176,860 Mark R. Tercek 81,969 111,974 Donald F. Textor 125,735 171,762 John R. Tormondsen 48,550 66,323 Leslie C. Tortora 165,109 225,550 John L. Townsend III 133,632 182,550 Byron D. Trott 77,680 106,116 Robert B. Tudor III 38,744 52,926 Malcolm B. Turnbull* 40,457 55,267 John E. Urban 25,893 35,372 Lee G. Vance 158,393 216,376 George H. Walker IV 38,929 53,179 Thomas B. Walker III 179,463 245,159 Patrick J. Ward 229,699 313,784 George W. Wellde, Jr. 129,467 176,860 Kendrick R. Wilson III 100,363 137,103 Jon Winkelried 214,643 293,216 Steven J. Wisch 69,390 94,792 Richard E. Witten 129,467 176,860 Tracy R. Wolstencroft 113,487 155,030 Danny O. Yee 99,464 135,874 Gregory H. Zehner 69,795 95,344 Joseph R. Zimmel 175,345 239,533 Barry L. Zubrow 194,200 265,290 Mark A. Zurack 93,525 127,762 TRUSTS Anahue Trust 40,216 54,938 The Karsten Moller & Barbara Kahn-Moller Trust 50,000 50,000 Rayas Trust 39,123 50,000 Vyrona Trust 150,000 150,000 PARTNERSHIPS Daniel G. Brennan Family Limited Partnership 12,013 16,411 CORPORATIONS HJS2 Limited 39,918 54,530 Majix Limited 64,733 88,430 Melalula Limited 145,031 198,122
- ---------- * Includes shares held by a corporation wholly owned by the Covered Person. 54 55 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: August 2, 2000 By: /s/ Gregory K. Palm ---------------------------- Name: Gregory K. Palm Title: Attorney-in-Fact 55 56 EXHIBIT INDEX Exhibit Description A. Shareholders' Agreement, dated as of May 7, 1999 (incorporated by reference to Exhibit A to the Schedule 13D filed May 17, 1999 (File No. 005-56295) (the "Initial Schedule 13D")). B. Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., The Trustees of the Estate of Bernice Pauahi Bishop and Kamehameha Activities Association (incorporated by reference to Exhibit B to the Initial Schedule 13D). C. Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., The Sumitomo Bank, Limited and Sumitomo Bank Capital Markets, Inc. (incorporated by reference to Exhibit C to the Initial Schedule 13D). D. Form of Agreement Relating to Noncompetition and Other Covenants (incorporated by reference to Exhibit 10.20 to the registration statement on Form S-1 (File No. 333-74449) filed by The Goldman Sachs Group, Inc.). E. Form of Pledge Agreement (the "IPO Pledge Agreement") (incorporated by reference to Exhibit 10.21 to the registration statement on Form S-1 (File No. 333-74449) filed by The Goldman Sachs Group, Inc.). F. Form of Amendment No. 1 to the IPO Pledge Agreement (filed as Exhibit E), dated July 10, 2000. (incorporated by reference to Exhibit F to Amendment No. 4 to the Initial Schedule 13D, filed July 11, 2000 (File No. 005-56295)) G. Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit G to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). H. Supplemental Registration Rights Instrument, dated as of December 10, 1999 (incorporated by reference to Exhibit H to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). I. Form of Counterpart to Shareholders' Agreement for former profit participating limited partners of The Goldman Sachs Group, L.P. (incorporated by reference to Exhibit I to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). J. Form of Counterpart to Shareholders' Agreement for former retired limited partners of The Goldman Sachs Group, L.P. who are currently managing directors of The Goldman Sachs Group, Inc. (incorporated by reference to Exhibit J to Amendment No. 2 to the Initial Schedule 13D, filed June 21, 2000 (File No. 005-56295)). K. Form of Counterpart to Shareholders' Agreement for non-individual former owners of Hull and Associates, L.L.C. (incorporated by reference to Exhibit K to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). L. Form of Counterpart to Shareholders' Agreement for non-U.S. corporations (incorporated by reference to Exhibit L to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). M. Form of Counterpart to Shareholders' Agreement for non-U.S. trusts (incorporated by reference to Exhibit M to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). 56 57 N. Form of Guarantee and Pledge Agreement for non-U.S. corporations (incorporated by reference to Exhibit N to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). O. Form of Pledge Agreement for shareholders of non-U.S. corporations (incorporated by reference to Exhibit O to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). P. Form of Pledge Agreement for shareholders of non-U.S. corporations (Jersey version) (incorporated by reference to Exhibit P to Amendment No. 3 to the Initial Schedule 13D, filed June 30, 2000 (File No. 005-56295)). Q. Form of Counterpart to Shareholders' Agreement for Transferee Covered Persons. R. Supplemental Registration Rights Instrument, dated as of June 19, 2000. S. Supplemental Registration Rights Instrument, dated as of July 31, 2000. T. Underwriting Agreement (U.S. Version), dated as of August 1, 2000. U. Underwriting Agreement (International Version), dated as of August 1, 2000. V. Underwriting Agreement (Asia/Pacific Version), dated as of August 1, 2000. W. Power of Attorney (incorporated by reference to Exhibit I to Amendment No. 1 to the Initial Schedule 13D, filed December 17, 1999 (File No. 005-56295)). 57 EX-99.Q 2 ex99-q.txt FORM OF COUNTERPART TO SHAREHOLDERS' AGREEMENT 1 Exhibit Q COUNTERPART TO THE SHAREHOLDERS' AGREEMENT WHEREAS, a party (the "Transferor") to the Shareholders' Agreement, dated as of May 7, 1999, among The Goldman Sachs Group, Inc. (the "Company") and the Covered Persons listed on Appendix A thereto, as amended from time to time (the "Shareholders' Agreement"), has proposed to Transfer (as defined in the Shareholders' Agreement) shares of common stock (the "Transferred Shares") of the Company to the undersigned transferee (the "Transferee"). NOW, THEREFORE, in consideration of the Transfer of the Transferred Shares and the waiver granted by the Shareholders' Committee (as defined in the Shareholders' Agreement) to permit such Transfer, the Transferee hereby agrees, represents and warrants that: 1. The Transferee has received a copy of, and read, each of (i) the Shareholders' Agreement, (ii) the provisions of the Plan of Incorporation (as defined in the Shareholders' Agreement) relating to transfer restrictions, hedging and pledging restrictions and custody arrangements; and (iii) the PMD Hedging and Pledging Restrictions, as amended as of April 2000. 2. Each Transferred Share will continue to be subject to the same restrictions on transfer (the "PLP Transfer Restrictions") set forth under the caption "PLP Restrictions" in Section 7 of the Plan of Incorporation that applied to such Share immediately prior to the Transfer, and the Transferee and the Transferred Shares will be subject to all the other provisions of the Plan of Incorporation, including the applicable hedging restrictions and custody arrangements, that applied to the Transferor and the Transferred Shares immediately prior to the Transfer. The Transferor, the Transferee, and each other transferee of shares of common stock of the Company from the Transferor on the date hereof shall be deemed to be the same person for purposes of compliance with the PLP Transfer Restrictions and all sales or other transfers by each of them shall be aggregated for this purpose. The Transferee also agrees to abide by the PMD Hedging and Pledging Restrictions as amended from time to time. 3. The Transferee will become a Covered Person under the Shareholders' Agreement and will remain a Covered Person so long as the PLP Transfer Restrictions are in effect. Once the PLP Transfer Restrictions terminate, the Transferee will be removed from Appendix A to the Shareholders' Agreement. 4. The Transferred Shares will be treated as Covered Shares and Voted Covered Shares under the Shareholders' Agreement until the termination of the PLP Transfer Restrictions; provided, however, that the Transferee will not be subject to the General Transfer Restriction in Section 2.2 of the Shareholders' Agreement. 5. Until the earlier of (x) the termination of the PLP Transfer Restrictions and (y) the date on which the Transferor ceases to be an Employee Covered Person, Section 2.3(c) of the Shareholders' Agreement will be applicable 2 to the Transferee as if the Transferee were an Employee Covered Person under the Shareholders' Agreement, but the Transferee will not be considered an Employee Covered Person for any other purpose. Agreed, as of __________, 2000: __________________________________ (Print name of Transferee) By:_______________________________ (Signature) EX-99.R 3 ex99-r.txt SUPPLEMENT REGISTRATION RIGHTS INSTRUMENT 1 Exhibit R SUPPLEMENTAL REGISTRATION RIGHTS INSTRUMENT SUPPLEMENTAL REGISTRATION RIGHTS INSTRUMENT, dated as of June 19, 2000 (the "Supplemental Instrument"). WHEREAS, The Goldman Sachs Group, Inc., a Delaware corporation (the "Company"), has entered into a Registration Rights Instrument, dated as of December 10, 1999 (the "Registration Rights Instrument") (attached as Annex A hereto); WHEREAS, shares of Common Stock will be issued to certain managing directors of the Company (the "EMDs") pursuant to awards granted by the Company in connection with its initial public offering (such shares of Common Stock, the "Shares"); and WHEREAS, pursuant to Section 1 of the Registration Rights Instrument, the Company has registered the Shares under the Securities Act of 1933 (the "Securities Act") for resale by the EMDs; NOW THEREFORE, the Company undertakes as follows: 1. Definitions. (a) Unless otherwise defined herein, all capitalized and undefined terms shall have the meanings assigned to them in the Registration Rights Instrument. (b) The following terms shall have the following meanings for the purposes of both this Supplemental Instrument and the Registration Rights Instrument: "Participating Holder" means each EMD who sells Shares pursuant to the Registration Statement. "Participating Stock" means the Shares. "Prospectus" means the prospectus included in the Registration Statement (as defined below), as amended from time to time. "Registration Statement" means the Company's Registration Statement on Form S-8 (File No. 333-80839) registering the Shares for resale by the EMDs. "Request Registration" means the registration of Shares for resale by the EMDs and the distribution of the Shares by the EMDs in a manner contemplated by the Prospectus. 2 2. Supplements and Modifications. With respect to the Request Registration contemplated by this Supplemental Instrument, the Registration Rights Instrument is hereby supplemented, modified and superseded as follows: (a) The expense reimbursement provisions of Section 2 of the Registration Rights Instrument shall apply to the distribution of the Shares in the manner contemplated by the Prospectus. (b) The indemnification and contribution provisions of Section 3 of the Registration Rights Instrument shall apply to the distribution of the Shares in the manner contemplated by the Prospectus. (c) No Participating Holder shall be obligated to provide indemnification or contribution to the Company as provided in Sections 3(b) and 3(d) of the Registration Rights Instrument; and no Participating Holder has provided any information to the Company for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto. (d) The provisions of Section 1 of the Registration Rights Instrument shall not impose or be deemed to impose any obligations on the Company or any Participating Holder. Each Participating Holder shall be entitled to the benefits of Sections 2 and 3 of the Registration Rights Instrument, as supplemented, modified and superseded by this Supplemental Instrument. 3. Parties in Interest. The Participating Holders may not transfer or assign their rights under this Supplemental Instrument or the Registration Rights Instrument, and any attempted transfer or assignment in violation of this Section 3 shall be null and void. -2- 3 IN WITNESS WHEREOF, the Company has executed and delivered this Supplemental Instrument as of the date above written. THE GOLDMAN SACHS GROUP, INC. By: /s/ Esta E. Stecher ------------------------------- Name: Esta E. Stecher Title: Authorized Person -3- EX-99.S 4 ex99-s.txt SUPPLEMENTAL REGISTRATION RIGHTS INSTRUMENT 1 Exhibit S SUPPLEMENTAL REGISTRATION RIGHTS INSTRUMENT SUPPLEMENTAL REGISTRATION RIGHTS INSTRUMENT, dated as of July 31, 2000 (the "Supplemental Instrument"). WHEREAS, The Goldman Sachs Group, Inc., a Delaware corporation (the "Company"), has entered into a Registration Rights Instrument, dated as of December 10, 1999 (the "Registration Rights Instrument") (attached as Annex A hereto); WHEREAS, pursuant to Section 1 of the Registration Rights Instrument, the Company has determined to register under the Securities Act of 1933 (the "Securities Act") the Designated Stock (as defined below) for resale by the Selling Shareholders (as defined below); and WHEREAS, pursuant to Section 1 of the Registration Rights Instrument, the Company has notified each person or entity listed in Schedule I hereto (each, a "Selling Shareholder") of such determination, and each Selling Shareholder has requested that the Company include such Selling Shareholder's Designated Stock in the Registration Statement (as defined below); NOW THEREFORE, the Company undertakes as follows: 1. Definitions. (a) Unless otherwise defined herein, all capitalized and undefined terms shall have the meanings assigned to them in the Registration Rights Instrument. (b) The following terms shall have the following meanings for the purposes of both this Supplemental Instrument and the Registration Rights Instrument: "Designated Stock" means the shares of Common Stock listed next to each Selling Shareholder's name in Schedule I hereto. For the purposes of the Registration Rights Instrument, the Designated Stock shall be deemed to be the Participating Stock, subject to such stock ceasing to be Participating Stock pursuant to the last sentence of Section 1(a) of the Registration Rights Instrument, and the Selling Shareholders shall be deemed to be the Participating Holders. "Registration Statement" means, for the purposes of both this Supplemental Instrument and the Registration Rights Instrument, the Company's Registration Statement on Form S-3 (File No. 333-40810) registering the Designated Stock for resale by the Selling Shareholders. 2 "Request Registration" means, for the purposes of both this Supplemental Instrument and the Registration Rights Instrument, the registration of the Designated Stock for resale by the Selling Shareholders and the distribution of the Designated Stock by the Selling Shareholders pursuant to the Registration Statement. 2. Selling Shareholders. The Selling Shareholders will be entitled to receive the benefits of and will be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of the Registration Rights Instrument as supplemented, modified and superseded by this Supplemental Instrument. 3. Supplements and Modifications. With respect to the Request Registration contemplated by this Supplemental Instrument, the Registration Rights Instrument is hereby supplemented, modified and superseded as follows: (a) Pursuant to Section 1(c) of the Registration Rights Instrument, the Company hereby determines that, as contemplated by the Registration Statement, the Selling Shareholders may distribute the Designated Stock only in a firm commitment underwriting approved by the Company in the manner contemplated by Sections 1(c) and 1(f) of the Registration Rights Instrument. The Company hereby approves the form of underwriting agreements (the "Underwriting Agreements") attached hereto as Annexes B, C and D, and designates the underwriters listed therein as the Underwriters for the firm commitment underwriting. (b) The provisions of Section 1(e) of the Registration Rights Instrument will not apply to the Request Registration. (c) The expense reimbursement provisions of Section 2 of the Registration Rights Instrument, as supplemented, modified and superseded by the Underwriting Agreements, shall apply to the distribution of the Designated Stock. (d) The indemnification and contribution provisions of Section 3 of the Registration Rights Instrument shall apply only to the Participating Holders in connection with the distribution of the Designated Stock in the manner contemplated by the Registration Statement. The indemnification and contribution provisions of Section 3 of the Registration Rights Instrument shall not apply to any Underwriter, selling agent or other securities professional participating in the disposition of the Designated Stock. (e) Each Participating Holder shall provide indemnification and contribution to the Company as provided in Sections 3(b) and 3(d) of the Registration Rights Instrument. -2- 3 (f) Section 3(a) of the Registration Rights Instrument is hereby amended and supplemented by adding the words "preliminary prospectus or" immediately after the word "or" and immediately prior to the word "Prospectus" in the first proviso thereto. (g) Section 3(b) of the Registration Rights Instrument is hereby amended and supplemented by adding the words "preliminary prospectus or" immediately after the word "any" and immediately prior to the word "Prospectus" in clause (i) thereof. 4. Parties in Interest. The Participating Holders may not transfer or assign their rights or delegate their obligations under this Supplemental Instrument or the Registration Rights Instrument, and any attempted transfer, assignment or delegation in violation of this Section 4 shall be null and void. 5. Application of Registration Rights Instrument. Except as supplemented, modified and superseded by this Supplemental Instrument, the Registration Rights Instrument shall apply to the registration and distribution of the Designated Stock in the manner contemplated by the Registration Statement, and each Selling Shareholder, by participating in the Request Registration, shall be deemed to have agreed to undertake the obligations of a Participating Holder under the Registration Rights Instrument, as so supplemented, modified and superseded. -3- 4 IN WITNESS WHEREOF, the Company has executed and delivered this Supplemental Instrument as of the date above written. THE GOLDMAN SACHS GROUP, INC. By: /s/ Dan H. Jester ------------------------------- Name: Dan H. Jester Title: Authorized Person -4- EX-99.T 5 ex99-t.txt UNDERWRITING AGREEMENT (U.S. VERSION) 1 Exhibit T THE GOLDMAN SACHS GROUP, INC. COMMON STOCK (PAR VALUE $.01 PER SHARE) UNDERWRITING AGREEMENT (U.S. VERSION) ------------------------ August 1, 2000 Goldman, Sachs & Co., Banc of America Securities LLC, Bear, Stearns & Co. Inc., Chase Securities Inc., Credit Suisse First Boston Corporation, Deutsche Bank Securities Inc., Donaldson, Lufkin & Jenrette Securities Corporation, A.G. Edwards & Sons, Inc., FleetBoston Robertson Stephens Inc., Edward D. Jones & Co., L.P., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc., Morgan Stanley & Co. Incorporated, PaineWebber Incorporated, Prudential Securities Incorporated, Salomon Smith Barney Inc., As representatives of the several Underwriters named in Schedule I hereto, c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004. Ladies and Gentlemen: 2 Certain stockholders of The Goldman Sachs Group, Inc., a Delaware corporation (the "Company"), named in Schedule II hereto (the "Selling Stockholders") propose, subject to the terms and conditions stated herein, to sell to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of 35,000,000 shares (the "Firm Shares") of common stock, par value $.01 per share ("Stock"), of the Company and, at the election of the Underwriters, up to 5,250,000 additional shares (the "Optional Shares") of Stock. The Estate of Bernice Pauahi Bishop is joining in and consenting to the sale of Stock by Kamehameha Activities Association, and for the purposes of Sections 1(b) and (2), the introductory paragraph to Section 7, and Sections 7(h), 7(i), 7(p), 10, 11, 12, 13 and 16 and the first paragraph following Section 16 only, all references to a Selling Stockholder shall include Kamehameha Activities Association and the Estate of Bernice Pauahi Bishop, jointly as if they were one Selling Stockholder. Without limiting the generality of the foregoing, the Estate of Bernice Pauahi Bishop intends to and hereby agrees to sell, pursuant to Section 2 hereof, all of its interest, if any, in the 9,614,247 shares of Stock held of record by Kamehameha Activities Association to be sold pursuant to this Agreement. The Firm Shares and the Optional Shares which the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the "Shares". It is understood and agreed to by all parties that the Selling Stockholders (including the Estate of Bernice Pauahi Bishop) are concurrently entering into an agreement (the "Asia/Pacific Underwriting Agreement") providing for the sale by the Selling Stockholders (including the Estate of Bernice Pauahi Bishop) of up to a total of 1,150,000 shares of Stock (the "Asia/Pacific Shares"), including the option to purchase additional shares thereunder, through arrangements with certain underwriters in the Asia/Pacific Region (the "Asia/Pacific Underwriters"), for whom Goldman Sachs (Asia) L.L.C., BOCI Asia Limited, China Development Industrial Bank Inc., China International Capital Corporation (Hong Kong) Limited, Daiwa Securities SB Capital Markets Hong Kong Limited, The Development Bank of Singapore Ltd, HSBC Investment Bank Asia Limited, Jardine Fleming Securities Limited, Kokusai Securities (Hong Kong) Limited, Kotak Mahindra (International) Limited, The Nikko Merchant Bank (Singapore) Limited, Nomura International (Hong Kong) Limited, Samsung Securities Co., Ltd. and Were Stockbroking Ltd are acting as lead managers, and an agreement (the "International Underwriting Agreement") providing for the sale by the Selling Stockholders (including the Estate of Bernice Pauahi Bishop) of up to a total of 4,600,000 shares of Stock (the "International Shares"), including the option to purchase additional shares thereunder, through arrangements with certain underwriters outside the United States and Canada and the Asia/Pacific Region (the "International Underwriters"), for whom Goldman Sachs International, ABN AMRO Rothschild, Bayerische Hypo- und Vereinsbank AG, BNP Paribas, Cazenove & Co., Commerzbank Aktiengesellschaft, Deutsche Bank AG London, ING Barings Limited, as agent for ING Bank N.V., London Branch, Kleinwort Benson Limited, MEDIOBANCA - Banca di Credito Finanziario S.p.A., Societe Generale and UBS AG, acting through its business group UBS Warburg, are acting as lead managers. Anything herein or therein to the contrary notwithstanding, the -2- 3 respective closings under this Agreement, the Asia/Pacific Underwriting Agreement and the International Underwriting Agreement are hereby expressly made conditional on one another. The Underwriters hereunder, the Asia/Pacific Underwriters and the International Underwriters are simultaneously entering into an Agreement among Underwriting Syndicates (the "Agreement among Syndicates") which provides, among other things, that Goldman, Sachs & Co. shall act as global coordinator for the offering of shares of Stock and for the transfer of shares of Stock among the three syndicates. Except as the context may otherwise require, the Asia/Pacific Underwriters and the International Underwriters are referred to herein collectively as the "Global Underwriters" and the Asia/Pacific Underwriting Agreement and the International Underwriting Agreement are referred to herein collectively as the "Global Underwriting Agreements". Three forms of prospectus are to be used in connection with the offering and sale of shares of Stock contemplated by the foregoing, one relating to the Shares hereunder (the "U.S. Prospectus"), one relating to the Asia/Pacific Shares and another relating to the International Shares. The other two forms of prospectus will be identical to the U.S. Prospectus except for the front cover page, the back cover page, the text under the caption "Underwriting" and for the addition of a section captioned "Certain United States Tax Consequences to Non-U.S. Holders of Common Stock". Except as used in Sections 2, 3, 4, 9 and 11 herein, and except as the context may otherwise require, references hereinafter to the Shares shall include all the shares of Stock which may be sold pursuant to either this Agreement, the Asia/Pacific Underwriting Agreement or the International Underwriting Agreement, and references herein to any prospectus whether in preliminary or final form, and whether as amended or supplemented, shall include the U.S., the Asia/Pacific and the International versions thereof. 1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that: (i) A registration statement on Form S-3 (File No. 333-40810) and an Amendment No. 1 thereto (the "Initial Registration Statement") in respect of the Shares have been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which became or will become effective upon filing, no other document with respect to the -3- 4 Initial Registration Statement or document incorporated by reference therein has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including (i) the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective and (ii) the documents incorporated by reference in the prospectus contained in the Initial Registration Statement at the time such part of the Initial Registration Statement became effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement"; such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus"; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Initial Registration Statement that is incorporated by reference in the Registration Statement); (ii) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, -4- 5 however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-3; (iii) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-3; (iv) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects, to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-3; -5- 6 (v) Neither the Company nor any of its subsidiaries (the "Significant Subsidiaries") that are listed or that are required to be listed in Exhibit 21.1 to the Company's Annual Report on Form 10-K for the fiscal year ended November 26, 1999 (the "1999 Annual Report") has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus as amended or supplemented; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus as amended or supplemented, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus as amended or supplemented; (vi) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries; (vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; the Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; each corporate subsidiary of the Company that is a Significant Subsidiary (a "Corporate Significant Subsidiary"), each partnership subsidiary of the Company in which the Company or one of its subsidiaries is a general partner that is a Significant Subsidiary (a "Partnership Significant Subsidiary"), each unlimited liability company subsidiary of the Company that is a Significant Subsidiary (a "ULLC Significant -6- 7 Subsidiary") and each limited liability company in which the Company or one of its subsidiaries is a managing member that is a Significant Subsidiary (an "LLC Significant Subsidiary") has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, partnership, unlimited liability company or limited liability company, as the case may be, in good standing under the laws of its jurisdiction of incorporation or organization, as the case may be, with the power (corporate, partnership, unlimited liability company or limited liability company, as the case may be) and authority to own its properties and conduct its business as described in the Prospectus; (viii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company, including the Shares, have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description of the capital stock contained in the Prospectus; all of the issued shares of capital stock of each Corporate Significant Subsidiary, all of the issued shares of each ULLC Significant Subsidiary and all of the membership interests in each LLC Significant Subsidiary have been duly and validly authorized and issued, are fully paid and, in the case of any Corporate Significant Subsidiaries and LLC Significant Subsidiaries, are non-assessable and (except for (A) directors' qualifying shares and (B) 50% of the interests in Goldman Sachs Holdings L.L.C.) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; and all of the partnership interests in each Partnership Significant Subsidiary have been duly and validly created and (except for interests in Goldman Sachs Mitsui Marine Derivative Products, L.P.) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; (ix) The compliance by the Company with all of the provisions of this Agreement and the Global Underwriting Agreements and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or the organizational documents of any of its Significant Subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required to be obtained or made by the Company for the sale of the -7- 8 Shares or the consummation by the Company of the transactions contemplated by this Agreement and the Global Underwriting Agreements, except the registration under the Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters and the Global Underwriters; (x) Neither the Company nor any of its Significant Subsidiaries is in violation of its organizational documents or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound; (xi) The statements set forth in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the securities described therein, in the Asia/Pacific and International versions of the Prospectus under the caption "Certain United States Tax Consequences to Non-U.S. Holders of Common Stock" and in the Prospectus under the caption "Underwriting", insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair; (xii) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (xiii) The Company is not and, after giving effect to the offering and sale of the Shares, will not be an "investment company", as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"); (xiv) The Company and its Significant Subsidiaries possess all concessions, permits, licenses, consents, exceptions, franchises, authorizations, orders, registrations and qualifications issued by the appropriate Federal, state and foreign governments, governmental or regulatory authorities, self-regulatory organizations and all courts or other tribunals, and are members in good standing of each Federal, state or foreign exchange, board of trade, clearing house or -8- 9 association and self-regulatory or similar organization necessary to conduct their respective businesses as described in the Prospectus, except as would not, individually or in the aggregate, have a material adverse effect on the prospects, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole; and (xv) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its subsidiaries, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder. (b) Each of the Selling Stockholders severally represents and warrants to, and agrees with, each of the Underwriters and the Company that: (i) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any other person is required for the execution and delivery of this Agreement, the Global Underwriting Agreements, the Power of Attorney and the Custody Agreement, in each case, referred to in clause (viii) below, the sale of the Shares to be sold by such Selling Stockholder or the consummation by such Selling Stockholder of the transactions contemplated by this Agreement, the Global Underwriting Agreements, the Power of Attorney or the Custody Agreement, except that (A) such Selling Stockholder may need to file an amendment to any report on Schedule 13D relating to the Company previously filed by such Selling Stockholder, (B) such Selling Stockholder will need a waiver of the transfer restrictions under the Shareholders' Agreement, dated as of May 7, 1999 (the "Shareholders' Agreement"), among the Company and the Covered Persons listed therein, the Owner Agreements, dated as of July 11, 1999, and the Owner Agreements, dated as of September 24, 1999 (collectively, the "Hull Owner Agreements"), between the Company and certain former owners of Hull and Associates, L.L.C. and M. Blair Hull, Inc. and/or the Plan of Incorporation of The Goldman Sachs Group, L.P., ("Group L.P.") approved by the Schedule II Limited Partners thereto on March 8, 1999 (the "Plan of Incorporation"), which waiver will be in full force and effect at each Time of Delivery (as defined in Section 4 hereof) and (C) such Selling Stockholder may be obligated to apply the proceeds of the sale of the Shares to repay certain indebtedness of such Selling Stockholder, which payment, if required, will be made at the applicable Time of Delivery, and except the registration under the Act of such Shares, which has been made, and such as may be required under state securities or Blue Sky laws, which consents, approvals, authorizations, orders and filings are the only consents, approvals, authorizations, orders and filings necessary for the execution and delivery by such Selling Stockholder of this Agreement, the Global Underwriting Agreements, the Power of Attorney and the Custody Agreement and for the sale and delivery of the Shares to -9- 10 be sold by such Selling Stockholder hereunder and under the Global Underwriting Agreements, and such Selling Stockholder has full right, power and authority to enter into this Agreement, the Global Underwriting Agreements, the Power of Attorney and the Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder and under the Global Underwriting Agreements; (ii) The sale of the Shares to be sold by such Selling Stockholder hereunder and under the Global Underwriting Agreements and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the Global Underwriting Agreements, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound, or to which any of the property or assets of such Selling Stockholder is subject, except that (A) such Selling Stockholder will need a waiver of the transfer restrictions under the Shareholders' Agreement, the Hull Owner Agreements or the Plan of Incorporation, which waiver will be in full force and effect at each Time of Delivery; nor will such action result in any violation of the provisions of the certificate of incorporation, by-laws or other organizational or constituent documents of such Selling Stockholder or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder and (B) such Selling Stockholder may be obligated to apply the proceeds of the sale of the Shares to repay certain indebtedness of such Selling Stockholder, which payment, if required, will be made at the applicable Time of Delivery; (iii) Such Selling Stockholder has, and immediately prior to the Time of Delivery such Selling Stockholder will have, good and valid title to the Shares to be sold by such Selling Stockholder hereunder and under the Global Underwriting Agreements, free and clear of all liens, encumbrances, equities or claims, except that (A) such Selling Shareholder will need a waiver of the transfer restrictions under the Shareholders' Agreement, the Hull Owner Agreements and/or the Plan of Incorporation, which waiver will be in full force and effect at each Time of Delivery; and, upon delivery of such Shares and payment therefor pursuant hereto and thereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters or the Global Underwriters, as the case may be and (B) such Selling Stockholder may be obligated to apply the proceeds from the sale of the Shares to repay certain indebtedness of such Selling Stockholder, which payment, if required, will be made at the applicable Time of Delivery; -10- 11 (iv) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (v) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the First Time of Delivery (as defined in Section 4 hereof) a properly completed and executed United States Treasury Department Form W- 8BEN, W-8IMY or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); (vi) To the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, such Preliminary Prospectus and the Registration Statement did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, will, conform in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (vii) The Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, Domestic Custody Agreement, together with Instructions of an Authorized Person or Custody Agreement and Documented Approval, in each case, in the form heretofore furnished to you (the "Custody Agreement"), duly authorized (if applicable), executed and delivered by such Selling Stockholder to The Chase Manhattan Bank, as custodian (the "Custodian"), such Selling Stockholder has duly authorized (if applicable), executed and delivered a Power of Attorney, in the form heretofore furnished to you (the "Power of Attorney"), appointing the persons indicated in Schedule II hereto, and each of them, as such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to (unless such Selling Stockholder is Sumitomo Bank Capital Markets, Inc. or Kamehameha Activities Association (jointly with the Estate of Bernice Pauahi Bishop)) determine the purchase price per share for purposes of Section 2(a) of this Agreement, to (unless such Selling Stockholder is Sumitomo Bank Capital Markets, Inc. or Kamehameha Activities Association (jointly with the Estate of Bernice Pauahi Bishop)) execute and deliver this Agreement and -11- 12 the Global Underwriting Agreements on behalf of such Selling Stockholder, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement, the Global Underwriting Agreements and the Custody Agreement; and Sumitomo Bank Capital Markets, Inc. and Kamehameha Activities Association (jointly with the Estate of Bernice Pauahi Bishop) have duly authorized, executed and delivered this Agreement and the Global Underwriting Agreements; and (viii) The Shares held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters under this Agreement and the Global Underwriting Agreements; the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable; the obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death, disability, incompetency or incapacity of any individual Selling Stockholder or, in the case of an estate or trust, by the death, disability, incompetency or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if any individual Selling Stockholder or any such executor or trustee should die or become disabled, incompetent or incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, the Shares shall be delivered by or on behalf of the Selling Stockholders in accordance with the terms and conditions of this Agreement, the Global Underwriting Agreements and the Custody Agreement; and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, disability, incompetency, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, disability, incompetency, incapacity, termination, dissolution or other event. 2. Subject to the terms and conditions herein set forth, (a) each of the Selling Stockholders, severally and not jointly (except that Kamehameha Activities Association and the Estate of Bernice Pauahi Bishop are acting jointly), agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from each of the Selling Stockholders, at the purchase price per share of $97.00, the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by each of the Selling Stockholders as set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased -12- 13 by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from all of the Selling Stockholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, the Selling Stockholders agree, as and to the extent indicated in Schedule II hereto, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Selling Stockholders, as and to the extent indicated in Schedule II hereto, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder. The Selling Stockholders, as and to the extent indicated in Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their election up to 5,250,000 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering overallotments in the sale of the Firm Shares. Any such election to purchase Optional Shares shall be made in proportion to the Optional Shares to be sold by each Selling Stockholder. Any such election to purchase Optional Shares may be exercised only by written notice from you to the Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten business days after the date of such notice. 3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus. 4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in such authorized denominations and registered in such names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice to the Selling Stockholders shall be delivered by or on behalf of the Selling Stockholders to Goldman, Sachs & Co., including, at the option of Goldman, Sachs & Co., through the facilities of The Depository Trust Company ("DTC"), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified to Goldman, Sachs & Co. by the Custodian upon at least forty-eight hours' prior notice. Kamehameha Activities Association and the Estate of Bernice Pauahi Bishop agree that Kamehameha Activities -13- 14 Association will receive payment for the Shares to be sold jointly by them. The Selling Stockholders will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery at the office of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004 or at the office of DTC or its designated custodian, as the case may be (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on August 7, 2000 or such other time and date as Goldman, Sachs & Co. and the Selling Stockholders may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York City time, on the date specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase such Optional Shares, or such other time and date as Goldman, Sachs & Co. and the Selling Stockholders may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the "First Time of Delivery", such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof, including the cross-receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 7(p) hereof, will be delivered at the offices of Sullivan & Cromwell, 125 Broad Street, New York, N.Y. 10004 (the "Closing Location"), and the Shares will be delivered at the Designated Office, all at each Time of Delivery. A meeting will be held at the Closing Location at 2:30 p.m., New York City time, on the second New York Business Day next preceding each Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. 5. The Company agrees with each of the Underwriters: (a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus prior to the last Time of Delivery (other than any amendment or supplement effected through the filing of a report under the Exchange Act) which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement -14- 15 has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order; (b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; and to comply with all applicable securities and other laws, rules and regulations in each such jurisdiction; (c) Prior to 10:00 A.M., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the -15- 16 Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158 under the Act); (e) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus, not to, directly or indirectly, offer, sell, contract to sell or otherwise dispose of, including, without limitation, through the entry into a cash-settled derivative instrument, any shares of Stock or any securities of the Company that are substantially similar to Stock, including but not limited to any securities that are convertible into or exercisable or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities, without the prior written consent of Goldman, Sachs & Co.; provided, however, that the Company may (i) offer and sell Stock and such other substantially similar securities for the account of stockholders, and (ii) offer, sell, contract to sell and otherwise dispose of Stock and such other substantially similar securities (A) pursuant to employee benefit plans and employment contracts and agreements, (B) upon conversion or exchange of convertible or exchangeable securities and (C) in connection with a merger, consolidation, share exchange or other business combination or the acquisition of a business or other assets (tangible or intangible); (f) To furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; (g) During a period of five years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders generally, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and -16- 17 financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission); and (h) If the Company elects to rely upon Rule 462(b) under the Act, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and at the time of filing to either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act. 6. The Company and each of the Selling Stockholders, jointly and severally, covenant and agree with one another and with the several Underwriters that (a) the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Global Underwriting Agreements, the Agreement among Syndicates, the Selling Agreements, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof; (iv) all fees and expenses in connection with listing the Shares on the New York Stock Exchange; (v) the filing fees incident to, and the fees and disbursements of counsel in connection with, securing any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and charges of any transfer agent or registrar; (viii) the fees and expenses of the Attorneys-in-Fact and Custodian and (ix) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; and (b) such Selling Stockholder will pay or cause to be paid (i) any fees and expenses of counsel for such Selling Stockholder and (ii) all transfer taxes incident to the sale and delivery of the Shares to be sold by such Selling Stockholder to the Underwriters hereunder. In connection with clause (b)(ii) of the preceding sentence, Goldman, Sachs & Co. agrees to pay New York State stock transfer tax, and the Selling Stockholder agrees to reimburse Goldman, Sachs & Co. for associated carrying costs if such tax payment is not rebated on the day of payment and for any portion of such tax payment not rebated. It is understood, however, that the Company shall bear, and the Selling Stockholders shall not be required to pay or to reimburse the Company for, the cost of any other matters not directly relating to the sale and purchase of the Shares pursuant -17- 18 to this Agreement, and that, except as provided in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make. 7. The respective obligations of the several Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in the discretion of the Underwriters, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters; (b) Cleary, Gottlieb, Steen & Hamilton, counsel for the Underwriters, shall have furnished to you such written opinions and letter (a draft of such opinion and letter is attached as Annex II(a) hereto), dated such Time of Delivery, to the effect that the matters set forth in the Asia/Pacific and International versions of the Prospectus under the caption "Certain United States Tax Consequences to Non-U.S. Holders of Common Stock", insofar as they purport to describe the provisions of the laws referred to therein, are accurate, complete and fair and with respect to the matters set forth in paragraphs (i), (ii), (v), (viii) and (ix) of subsection (d) below as well as such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) Sullivan & Cromwell, counsel for the Company, shall have furnished to you their written opinion (a draft of such opinion is attached as Annex II(b) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware; -18- 19 (ii) All of the outstanding shares of Stock, including the Shares, have been duly authorized and validly issued and are fully paid and nonassessable; (iii) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware for the sale of the Shares by the Selling Stockholders to the Underwriters have been obtained or made; (iv) The performance by the Company of its obligations under the Underwriting Agreement and the Global Underwriting Agreements will not (a) violate the Certificate of Incorporation or By-laws of the Company, (b) result in a default under or breach of the agreements listed in Part IV, Item 14(a), Exhibit Numbers 2.1, 4.1, 10.1 through 10.21, inclusive, or 10.25 through 10.45, inclusive, of the 1999 Annual Report or Exhibits 10.1 through 10.5, inclusive, of the Form 10- Q for the quarter ended May 26, 2000 filed by the Company with the Commission or Exhibit 4.3 of the Registration Statement, (c) violate any court orders listed in the Officer's Certificate of Robert J. Katz, General Counsel of the Company, or (d) violate any Federal law of the United States or law of the State of New York applicable to the Company; provided, however, that for purposes of this paragraph (iv), such counsel may state that they express no opinion with respect to Federal or state securities laws, other antifraud laws and fraudulent transfer laws; provided, further, that such counsel may also state that insofar as performance by the Company of its obligations under the Underwriting Agreement and the Global Underwriting Agreements is concerned, they are expressing no opinion as to bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors' rights; (v) This Agreement and the Global Underwriting Agreements have been duly authorized, executed and delivered by the Company; and (vi) The Company is not an "investment company", as such term is defined in the Investment Company Act. Such counsel shall also furnish you with a letter to the effect that, as counsel to the Company, they reviewed the Registration Statement and the Prospectus, participated in discussions with your representatives and those of the Company and its accountants and advised the Company as to the requirements of the Act and the applicable rules and regulations thereunder; between the date of the Prospectus and such Time of Delivery, such counsel participated in further discussions with your representatives and those of the Company and its accountants in which the contents of certain portions of the Prospectus and related matters were discussed and reviewed certain certificates of certain officers of -19- 20 the Company, an opinion and letter addressed to you from Gregory K. Palm, Esq. and a letter addressed to you from the Company's independent accountants; on the basis of the information that such counsel gained in the course of the performance of the services referred to above, considered in the light of such counsel's understanding of the applicable law and the experience such counsel have gained through their practice under the Act, they will confirm to you that, in such counsel's opinion, the Registration Statement and the Prospectus, as of the effective date of the Registration Statement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder; nothing that came to such counsel's attention in the course of such review has caused such counsel to believe that the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; nothing that came to the attention of such counsel in the course of the procedures described in the second clause of this paragraph has caused such counsel to believe that the Prospectus, as of its date or as of such Time of Delivery, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; such counsel may state that the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus except for those made under the captions "Description of Capital Stock" and "Underwriting" in the Prospectus insofar as they relate to provisions of documents therein described and those made under the caption "Certain United States Tax Consequences to Non-U.S. Holders of Common Stock" in the Asia/Pacific and International versions of the Prospectus insofar as they relate to provisions of U.S. Federal tax law therein described; also, such counsel need express no opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement or the Prospectus; finally, such counsel may assume that any Rule 462(b) Registration Statement was filed with the Commission prior to the time that any confirmations of the sale of any of the Shares were sent or given to investors. In addition, such counsel shall state that they do not know of any litigation instituted or threatened against the Company that would be required to be disclosed in the Prospectus that is not so disclosed, provided, that such counsel may also state that they call to your attention that the Company has an internal legal department and that while such counsel represents the Company and its affiliates on a regular basis, such counsel's engagement has been limited to specific matters as to which it was consulted and, accordingly, such counsel's knowledge with respect to litigation instituted or threatened against the Company is limited; and that they do not know of any documents that are required to be filed as exhibits to the Registration Statement that are not so filed. -20- 21 In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied upon certificates of officers of the general partner of Group L.P. and of the Company and its subsidiaries, certificates of public officials and other sources believed by such counsel to be responsible; (d) Gregory K. Palm, Esq., a General Counsel for the Company, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex II(c) hereto), dated such Time of Delivery, in form and substance satisfactory to you to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; and the Shares conform to the description of the Stock contained in the Prospectus; (iii) Each of Goldman, Sachs & Co. and J. Aron & Company has been duly organized and is validly existing as a limited partnership and general partnership, respectively, in good standing under the laws of its jurisdiction of formation; and the general and limited partnership interests in Goldman, Sachs & Co. and the general partnership interests in J. Aron & Company have been duly and validly created and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that you and he are justified in relying upon such opinions and certificates); (iv) To the best of such counsel's knowledge and other than as set forth in the Prospectus as amended or supplemented, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity or -21- 22 results of operations of the Company and its subsidiaries; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (v) This Agreement and the Global Underwriting Agreements have been duly authorized, executed and delivered by the Company; (vi) The sale of the Shares being delivered at such Time of Delivery and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; provided, however, that, for the purposes of this paragraph (vi), such counsel need not express any opinion with respect to Federal or state securities laws, other antifraud laws, and fraudulent transfer laws; provided, further, that insofar as the compliance by the Company with all of the provisions of this Agreement and the Global Underwriting Agreements and the consummation of the transactions herein and therein contemplated are concerned, such counsel need not express any opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights; (vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of the United States of America or the State of New York is required to be obtained or made by the Company for the sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement and the Global Underwriting Agreements, except the registration under the Act of the Shares, which has been made, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters and the Global Underwriters; (viii) The statements set forth in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the securities described therein, and under the caption "Underwriting", -22- 23 insofar as they purport to describe the provisions of the Federal laws of the United States and documents referred to therein, are accurate, complete and fair; (ix) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein and other financial data derived from the Company's accounting records, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; although he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsections (ii) and (viii) of this Section 7(d), he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein and other financial data derived from the Company's accounting records, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein and other financial data derived from the Company's accounting records, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or that, as of such Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein and other financial data derived from the Company's accounting records, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and he does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. Such counsel may state that he assumes that any Rule 462(b) Registration Statement was filed with the Commission prior to the time that any confirmations of the sale of any of the Shares were sent or given to investors. -23- 24 In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware. Such counsel may also state that, insofar as such opinion involves factual matters, he has relied upon certificates of officers of the general partner of Group L.P. and of the Company and its subsidiaries and certificates of public officials and other sources believed by such counsel to be responsible. In addition, such counsel may state that he has examined, or has caused members of the Company's legal department to examine, such partnership records, certificates and other documents, and such questions of law, as he has considered necessary or appropriate for the purposes of such opinion; (e) Linklaters, United Kingdom counsel for the Company, shall have furnished to you their written opinion (a draft of such opinion is attached as Annex II(d) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) Goldman Sachs International has been duly incorporated and is validly existing as a private unlimited company under the laws of England; and (ii) All of the issued shares of Goldman Sachs International have been duly and validly authorized and issued, are fully paid, and are owned by Goldman Sachs Holdings (U.K.), Goldman Sachs Investments Europe and Goldman Sachs (U.K.) L.L.C., which are themselves indirectly owned by the Company, free and clear from all liens, encumbrances, equities or claims. In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the Companies Act of England. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied upon certificates of officers of the Company and certificates of public officials and other sources believed by such counsel to be responsible; (f) Cravath, Swaine & Moore, special counsel to Sumitomo Bank Capital Markets, Inc., as indicated in Schedule II hereto, shall have furnished to you their written opinion (a draft of such opinion is attached as Annex II(e) hereto) dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) This Agreement and the Global Underwriting Agreements have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder; (ii) No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement and the Global Underwriting Agreements in connection with the Shares to be sold by such Selling Stockholder -24- 25 hereunder or thereunder, except the registration under the Act of the Shares, which has been duly obtained and is in full force and effect, the filing of an amendment to such Selling Stockholder's Schedule 13D with respect to the Company and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of such Shares by the Underwriters or the Global Underwriters; (iii) Good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, has been transferred to each of the several Underwriters or Global Underwriters, as the case may be, who have purchased such Shares in good faith and without notice of any such lien, encumbrance, equity or claim or any other adverse claim within the meaning of the Uniform Commercial Code; and (iv) A Power of Attorney and Custody Agreement have been duly executed and delivered by such Selling Stockholder and constitute valid and binding agreements of such Selling Stockholder in accordance with their terms. In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware; (g) Robert A. Rabbino, counsel to Sumitomo Bank Capital Markets, Inc., as indicated in Schedule II hereto, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex II(f) hereto) dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) The sale of the Shares to be sold by such Selling Stockholder hereunder and under the Global Underwriting Agreements and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the Global Underwriting Agreements, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound, or to which any of the property or assets of such Selling Stockholder is subject, nor will such action result in any violation of the provisions of the organizational documents of such Selling Stockholder or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder; -25- 26 (ii) Immediately prior to such Time of Delivery such Selling Stockholder had good and valid title to the Shares to be sold at such Time of Delivery by such Selling Stockholder under this Agreement and the Global Underwriting Agreements, free and clear of all liens, encumbrances, equities or claims, and full right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder and thereunder; and (iii) A Power of Attorney and Custody Agreement have been duly executed and delivered by such Selling Stockholder and constitute valid and binding agreements of such Selling Stockholder in accordance with their terms. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware and in rendering the opinion in subparagraph (ii) such counsel may rely upon a certificate of such Selling Stockholder in respect of matters of fact as to ownership of, and liens, encumbrances, equities or claims on the Shares sold by such Selling Stockholder, provided that such counsel shall state that he believes that you and he are justified in relying upon such certificate; (h) Cravath, Swaine & Moore, special counsel for Kamehameha Activities Association and the Estate of Bernice Pauahi Bishop, acting jointly as if they were one Selling Stockholder, as indicated in Schedule II hereto, shall have furnished to you their written opinion (a draft of such opinion is attached as Annex II(g) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) This Agreement and the Global Underwriting Agreements have been duly executed and delivered by or on behalf of such Selling Stockholder; (ii) No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement and the Global Underwriting Agreements in connection with the Shares to be sold by such Selling Stockholder hereunder or thereunder, except the registration under the Act of such Shares, which has been duly obtained and is in full force and effect, the filing of an amendment to such Selling Stockholder's Schedule 13D and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of such Shares by the Underwriters or the Global Underwriters; (iii) Good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, has been transferred to each of the several Underwriters or Global Underwriters, as the case may be, who have purchased -26- 27 such Shares in good faith and without notice of any such lien, encumbrance, equity or claim or any other adverse claim within the meaning of the Uniform Commercial Code; and (iv) A Power of Attorney and Custody Agreement have been duly executed and delivered by such Selling Stockholder and constitute valid and binding agreements of such Selling Stockholder in accordance with their terms. In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the Federal laws of the United States and the laws of the State of New York. Such counsel may also state that as to matters of law of the State of Hawaii, such counsel has relied on the opinion to you referred to in Section 7(i) below; (i) Watanabe, Ing & Kawashima, counsel for Kamehameha Activities Association and the Estate of Bernice Pauahi Bishop, acting jointly as if they were one Selling Stockholder, as indicated in Schedule II hereto, shall have furnished to you their written opinion (a draft of such opinion is attached as Annex II(h) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) This Agreement and the Global Underwriting Agreements have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder; and the sale of the Shares to be sold by such Selling Stockholder hereunder and thereunder and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the Global Underwriting Agreements, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of the terms or provisions of, or constitute a default under, (i) the organizational or constituent documents of the Selling Stockholder, (ii) any statute, rule or regulation of any Hawaii governmental agency or body having jurisdiction over the Selling Stockholder or the property of the Selling Stockholder, (iii) to such counsel's knowledge, after due inquiry of the Selling Stockholder, any order of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property of the Selling Stockholder, or (iv) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Kamehameha Activities Association is a party or by which Kamehameha Activities Association is bound, or to which any of the property or assets of Kamehameha Activities Association is subject as identified to such counsel by an officer of Kamehameha Activities Association as being all agreements or instruments that relate to over $1,000,000 of indebtedness or contain any limitation or restriction on transfers of securities by Kamehameha Activities Association; -27- 28 (ii) No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement and the Global Underwriting Agreements to be taken by the Selling Stockholder in connection with the Shares to be sold by such Selling Stockholder hereunder or thereunder, except such as may be required under Hawaii securities or Blue Sky laws in connection with the purchase and distribution of such Shares by the Underwriters or the Global Underwriters; (iii) Immediately prior to the sale of the Shares to be sold by such Selling Stockholder under this Agreement and the Global Underwriting Agreements, such Selling Stockholder was the record and beneficial owner of the Shares to be sold at such Time of Delivery by such Selling Stockholder under this Agreement and the Global Underwriting Agreements, free and clear, to such counsel's knowledge, of adverse claims; (iv) Assuming that the Shares to be sold by such Selling Stockholder and the certificate(s) therefor have been delivered to the several U.S. Underwriters, International Underwriters or Asia/Pacific Underwriters, as the case may be, registered in the names of such Underwriters (upon registration of transfer), or indorsed to such Underwriters or in blank, and such Underwriters acquire their interests in such Shares without notice of any adverse claim (within the meaning of section 8-105 of the Uniform Commercial Code), such Underwriters will acquire record and beneficial ownership of such Shares free and clear of adverse claims; (v) Such Selling Stockholder has the power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder under this Agreement and the Global Underwriting Agreements; and (vi) A Power of Attorney and, in the case of Kamehameha Activities Association, a Custody Agreement have been duly authorized, executed and delivered by such Selling Stockholder and the Power of Attorney constitutes a valid and binding instrument of such Selling Stockholder in accordance with its terms subject to revocation upon written notice. In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the laws of the State of Hawaii and in rendering the opinion in subparagraph (iii) such counsel may rely upon a certificate of such Selling Stockholder in respect of matters of fact as to ownership of, and liens, encumbrances, equities or claims on the Shares sold by such Selling Stockholder, provided that such counsel shall state that they believe that you and they are justified in relying upon such certificate. In addition, such counsel may also state that as to all matters of the laws of the -28- 29 State of New York, such counsel is relying on the opinion to you referred to in Section 7(h) hereof; (j) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement and as of each Time of Delivery is attached as Annex I(b) hereto); (k) (i) Neither the Company nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus as amended or supplemented, and (ii) since the respective dates as of which information is given in the Prospectus as amended or supplemented there shall not have been any change in the capital stock or long-term debt of the Company or any of its Significant Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus as amended or supplemented, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus as amended or supplemented; (l) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities; (m) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company's -29- 30 securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities; or (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this clause (iv) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (n) The Shares to be sold by the Selling Stockholders at such Time of Delivery shall have been duly listed on the New York Stock Exchange; (o) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and (p) The Company shall have furnished or caused to be furnished to you, and the Selling Stockholders shall have furnished to you, at such Time of Delivery, certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other matters as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) and (k) of this Section, and as to such other matters as you may reasonably request. 8. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in -30- 31 reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for use therein. (b) Each Selling Stockholder, severally and not jointly, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein; and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that such Selling Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for use therein; provided, further, that the liability of a Selling Stockholder pursuant to this subsection (b) shall not exceed the amount of net proceeds received by such Selling Stockholder from the sale of its Shares pursuant to this Agreement. For purposes of this Section 8(b), written information furnished to the Company by Kamehameha Activities Association expressly for use in any Preliminary Prospectus, the Registration Statement or the Prospectus or any amendment or supplement thereto shall be deemed to include any written information furnished to the Company by the Estate of Bernice Pauahi Bishop for use in any of the foregoing. (c) Each Underwriter will indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but -31- 32 only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Goldman, Sachs & Co. expressly for use therein; and will reimburse the Company and each Selling Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling Stockholder in connection with investigating or defending any such action or claim as such expenses are incurred. (d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (which shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought under this Section 8 (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (e) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Stockholders taken together on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the -32- 33 allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Stockholders on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholders taken together on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Shares purchased under this Agreement (before deducting expenses) received by the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Shares purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectus, and for purposes of the allocation of benefits under this sentence the Company shall be deemed to have received all of the benefits received by the Selling Stockholders. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Stockholders on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, each of the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and no Selling Stockholder shall be required to contribute an amount that, together with any other payments made pursuant to this Section 8, exceeds the net proceeds received by such Selling Stockholder from the sale of its Shares pursuant to this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint. -33- 34 (f) The obligations of the Company and the Selling Stockholders under this Section 8 shall be in addition to any liability which the Company and the respective Selling Stockholders may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company or any Selling Stockholder within the meaning of the Act. 9. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Selling Stockholders shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Selling Stockholders that you have so arranged for the purchase of such Shares, or the Selling Stockholders notify you that they have so arranged for the purchase of such Shares, you or the Selling Stockholders shall have the right to postpone a Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares. (b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all of the Shares to be purchased at such Time of Delivery, then the Selling Stockholders shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Selling Stockholders as provided -34- 35 in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all of the Shares to be purchased at such Time of Delivery, or if the Selling Stockholders shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Selling Stockholders to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company or the Selling Stockholders, except for the expenses to be borne by the Company and the Selling Stockholders and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Stockholders and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any of the Selling Stockholders, or any officer or director or controlling person of the Company, or any controlling person of any Selling Stockholder, and shall survive delivery of and payment for the Shares. Anything herein to the contrary notwithstanding, the indemnity agreements of the Company in subsection (a) of Section 8 hereof, the representations and warranties in subsections (a)(ii), (a)(iii) and (a)(iv) of Section 1 hereof and any representation or warranty as to the accuracy of the Registration Statement or the Prospectus contained in any certificate furnished by the Company pursuant to Section 7 hereof, insofar as they may constitute a basis for indemnification for liabilities (other than payment by the Company of expenses incurred or paid in the successful defense of any action, suit or proceeding) arising under the Act, shall not extend to the extent of any interest therein of a controlling person of an Underwriter who is a director or officer who signed the Registration Statement or controlling person of the Company when the Registration Statement has become effective, except in each case to the extent that an interest of such character shall have been determined by a court of appropriate jurisdiction as not against public policy as expressed in the Act. Unless in the opinion of counsel for the Company the matter has been settled by controlling precedent, the Company will, if a claim for such indemnification is asserted, submit to a court of appropriate jurisdiction the question of whether such interest is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 11. If this Agreement shall be terminated pursuant to Section 9 hereof, none of the Company or the Selling Stockholders shall then be under any liability to any -35- 36 Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other reason any Shares are not delivered by or on behalf of the Selling Stockholders as provided herein, the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling Stockholders shall then be under no further liability to any Underwriter in respect of the Shares not so delivered except as provided in Sections 6 and 8 hereof. 12. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly or by Goldman, Sachs & Co. on behalf of you as the representatives; and in all dealings with any Selling Stockholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling Stockholder made or given by any or all of the Attorneys-in-Fact for such Selling Stockholder. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the representatives in care of Goldman, Sachs & Co., 32 Old Slip, 9th Floor, New York, New York 10004, Attention: Registration Department; if to any Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to such Selling Stockholder at its address set forth in Schedule II hereto; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire or telex constituting such Questionnaire, which address will be supplied to the Company or the Selling Stockholders by you upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Selling Stockholders and, to the extent provided in Sections 8 and 10 hereof, the officers and directors of the Company and each person who controls the Company, any Selling Stockholder or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. -36- 37 14. Time shall be of the essence of this Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 16. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. If the foregoing is in accordance with your understanding, please sign and return to us three counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and each of the Selling Stockholders. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters (U.S. Version), the form of which shall be submitted to the Company and the Selling Stockholders for examination upon request, but without warranty on your part as to the authority of the signers thereof. -37- 38 Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and binding Power of Attorney which authorizes such Attorney-in-Fact to take such action. Very truly yours, The Goldman Sachs Group, Inc. By: /s/ David A. Viniar -------------------------------------------------- Name: David A. Viniar Title: Chief Financial Officer Sumitomo Bank Capital Markets, Inc. By: /s/ Natsuo Okada -------------------------------------------------- Name: Natsuo Okada Title: President Kamehameha Activities Association By: /s/ Wallace G.K. Chin -------------------------------------------------- Name: Wallace G.K. Chin Title: President The Trustees of the Estate of Bernice Pauahi Bishop /s/ Francis A. Keala -------------------------------------------------- /s/ Constance H. Lau -------------------------------------------------- /s/ David P. Coon -------------------------------------------------- -38- 39 * -------------------------------------------------- Bradley I. Abelow * -------------------------------------------------- Andrew M. Alper * -------------------------------------------------- Armen A. Avanessians * -------------------------------------------------- David M. Baum * -------------------------------------------------- Ron E. Beller * -------------------------------------------------- Milton R. Berlinski * -------------------------------------------------- Lloyd C. Blankfein * -------------------------------------------------- David W. Blood * -------------------------------------------------- The Daniel G. Brennan Family Limited Partnership * -------------------------------------------------- Peter L. Briger, Jr. * -------------------------------------------------- Richard J. Bronks -39- 40 * -------------------------------------------------- Lawrence R. Buchalter * -------------------------------------------------- Christopher J. Carrera * -------------------------------------------------- Mary Ann Casati * -------------------------------------------------- Anahue Trust * -------------------------------------------------- Zachariah Cobrinik * -------------------------------------------------- Gary D. Cohn * -------------------------------------------------- Christopher A. Cole * -------------------------------------------------- Carlos A. Cordeiro * -------------------------------------------------- Henry Cornell * -------------------------------------------------- Jon S. Corzine * -------------------------------------------------- Frank L. Coulson, Jr. * -------------------------------------------------- Randolph L. Cowen * -------------------------------------------------- Timothy D. Dattels -40- 41 * -------------------------------------------------- Gavyn Davies * -------------------------------------------------- David A. Dechman * -------------------------------------------------- Robert V. Delaney, Jr. * -------------------------------------------------- Alexander C. Dibelius * -------------------------------------------------- John O. Downing * -------------------------------------------------- C. Steven Duncker * -------------------------------------------------- Glenn P. Earle * -------------------------------------------------- Paul S. Efron * -------------------------------------------------- Pieter Maarten Feenstra * -------------------------------------------------- Lawton W. Fitt * -------------------------------------------------- David B. Ford * -------------------------------------------------- Edward C. Forst * -------------------------------------------------- Christopher G. French -41- 42 * -------------------------------------------------- Richard A. Friedman * -------------------------------------------------- Joseph D. Gatto * -------------------------------------------------- Peter C. Gerhard * -------------------------------------------------- Jeffrey B. Goldenberg * -------------------------------------------------- Jacob D. Goldfield * -------------------------------------------------- Amy O. Goodfriend * -------------------------------------------------- Andrew M. Gordon * -------------------------------------------------- Geoffrey T. Grant * -------------------------------------------------- Joseph D. Gutman * -------------------------------------------------- Robert S. Harrison * -------------------------------------------------- Thomas J. Healey * -------------------------------------------------- Sylvain M. Hefes * -------------------------------------------------- Vyrona Trust -42- 43 * -------------------------------------------------- David B. Heller * -------------------------------------------------- Mary C. Henry * -------------------------------------------------- Jacquelyn M. Hoffman-Zehner * -------------------------------------------------- M. Blair Hull * -------------------------------------------------- Timothy J. Hunter * -------------------------------------------------- Fern Hurst * -------------------------------------------------- Robert J. Hurst * -------------------------------------------------- Timothy J. Ingrassia * -------------------------------------------------- Reuben Jeffery III * -------------------------------------------------- Stefan J. Jentzsch * -------------------------------------------------- Barry A. Kaplan * -------------------------------------------------- Robert J. Katz * -------------------------------------------------- Kevin W. Kennedy -43- 44 * -------------------------------------------------- Douglas W. Kimmelman * -------------------------------------------------- Bradford C. Koenig * -------------------------------------------------- Jonathan L. Kolatch * -------------------------------------------------- David G. Lambert * -------------------------------------------------- Thomas D. Lasersohn * -------------------------------------------------- Matthew G. L'Heureux * -------------------------------------------------- Lawrence H. Linden * -------------------------------------------------- Robert Litterman * -------------------------------------------------- Robert H. Litzenberger * -------------------------------------------------- James Lodas * -------------------------------------------------- Jonathan M. Lopatin * -------------------------------------------------- Michael R. Lynch * -------------------------------------------------- Ronald G. Marks -44- 45 * -------------------------------------------------- Eff W. Martin * -------------------------------------------------- John P. McNulty * -------------------------------------------------- E. Scott Mead * -------------------------------------------------- T. Willem Mesdag * -------------------------------------------------- Eric M. Mindich * -------------------------------------------------- Steven T. Mnuchin * -------------------------------------------------- Karsten N. Moller * -------------------------------------------------- The Karsten Moller and Barbara Kahn-Moller Trust * -------------------------------------------------- Thomas K. Montag * -------------------------------------------------- Robert B. Morris III * -------------------------------------------------- Michael P. Mortara * -------------------------------------------------- Sharmin Mossavar-Rahmani -45- 46 * -------------------------------------------------- Edward A. Mule * -------------------------------------------------- Thomas S. Murphy, Jr. * -------------------------------------------------- Avi M. Nash * -------------------------------------------------- Daniel M. Neidich * -------------------------------------------------- Kipp M. Nelson * -------------------------------------------------- Robin Neustein * -------------------------------------------------- Suzanne M. Nora Johnson * -------------------------------------------------- Michael E. Novogratz * -------------------------------------------------- Majix Limited * -------------------------------------------------- Terence J. O'Neill * -------------------------------------------------- Timothy J. O'Neill * -------------------------------------------------- Donald C. Opatrny, Jr. * -------------------------------------------------- Robert J. O'Shea -46- 47 * -------------------------------------------------- Greg M. Ostroff * -------------------------------------------------- Robert J. Pace * -------------------------------------------------- Gregory K. Palm * -------------------------------------------------- Scott M. Pinkus * -------------------------------------------------- John J. Powers * -------------------------------------------------- Michael A. Price * -------------------------------------------------- Scott S. Prince * -------------------------------------------------- Stephen D. Quinn * -------------------------------------------------- Michael G. Rantz * -------------------------------------------------- Girish V. Reddy * -------------------------------------------------- Arthur J. Reimers III * -------------------------------------------------- James P. Riley, Jr. * -------------------------------------------------- Simon M. Robertson -47- 48 * -------------------------------------------------- J. David Rogers * -------------------------------------------------- Emmanuel Roman * -------------------------------------------------- Rayas Trust * -------------------------------------------------- Ralph F. Rosenberg * -------------------------------------------------- Stuart M. Rothenberg * -------------------------------------------------- Michael S. Rubinoff * -------------------------------------------------- Richard M. Ruzika * -------------------------------------------------- Jeri Lynn Ryan * -------------------------------------------------- Michael D. Ryan * -------------------------------------------------- Joseph Sassoon * -------------------------------------------------- Muneer A. Satter * -------------------------------------------------- Jonathan S. Savitz * -------------------------------------------------- Peter Savitz -48- 49 * -------------------------------------------------- Howard B. Schiller * -------------------------------------------------- Antoine Schwartz * -------------------------------------------------- Eric S. Schwartz * -------------------------------------------------- Charles B. Seelig, Jr. * -------------------------------------------------- Steven M. Shafran * -------------------------------------------------- Richard G. Sherlund * -------------------------------------------------- Michael S. Sherwood * -------------------------------------------------- Howard A. Silverstein * -------------------------------------------------- Dinakar Singh * -------------------------------------------------- Christian J. Siva-Jothy * -------------------------------------------------- Cody J Smith * -------------------------------------------------- Jonathan S. Sobel * -------------------------------------------------- Marc A. Spilker -49- 50 * -------------------------------------------------- Daniel W. Stanton * -------------------------------------------------- Esta E. Stecher * -------------------------------------------------- Cathrine S. Steck * -------------------------------------------------- Fredric E. Steck * -------------------------------------------------- HJS2 Limited * -------------------------------------------------- Melalula Limited * -------------------------------------------------- Gene T. Sykes * -------------------------------------------------- Mark R. Tercek * -------------------------------------------------- Donald F. Textor * -------------------------------------------------- John R. Tormondsen * -------------------------------------------------- Leslie C. Tortora * -------------------------------------------------- John L. Townsend III * -------------------------------------------------- Byron D. Trott -50- 51 * -------------------------------------------------- Robert B. Tudor III * -------------------------------------------------- Malcolm B. Turnbull * -------------------------------------------------- M.B. Turnbull Pty, Limited * -------------------------------------------------- John E. Urban * -------------------------------------------------- Lee G. Vance * -------------------------------------------------- George H. Walker IV * -------------------------------------------------- Thomas B. Walker III * -------------------------------------------------- Patrick J. Ward * -------------------------------------------------- George W. Wellde, Jr. * -------------------------------------------------- Kendrick R. Wilson III * -------------------------------------------------- Jon Winkelried * -------------------------------------------------- Steven J. Wisch * -------------------------------------------------- Richard E. Witten -51- 52 * -------------------------------------------------- Tracy R. Wolstencroft * -------------------------------------------------- Danny Yee * -------------------------------------------------- Gregory H. Zehner * -------------------------------------------------- Joseph R. Zimmel * -------------------------------------------------- Barry Zubrow * -------------------------------------------------- Mark A. Zurack *By: /s/ John A. Thain ------------------------------------- John A. Thain Attorney-in-Fact -52- 53 Accepted as of the date hereof: Goldman, Sachs & Co. /s/ Goldman, Sachs & Co. ------------------------------------- (Goldman, Sachs & Co.) On behalf of each of the Underwriters EX-99.U 6 ex99-u.txt UNDERWRITING AGREEMENT (INTERNATIONAL) 1 EXHIBIT U THE GOLDMAN SACHS GROUP, INC. COMMON STOCK (PAR VALUE $.01 PER SHARE) UNDERWRITING AGREEMENT (International Version) August 1, 2000 Goldman Sachs International, ABN AMRO Rothschild, Bayerische Hypo- und Vereinsbank Aktiengesellschaft, 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, UBS AG, acting through its business group UBS Warburg, As representatives of the several Underwriters named in Schedule I hereto, c/o Goldman Sachs International Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. 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 4,000,000 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 600,000 additional shares (the "Optional Shares") of Stock. The Estate of Bernice Pauahi Bishop is joining in and consenting to the sale of Stock by Kamehameha Activities Association, and for the purposes of Sections 2, 4, 7 (to the extent provided in the U.S. Underwriting Agreement (as defined below)), 2 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 to sell, pursuant to Section 2 hereof, all of its interest, if any, in the 1,098,771 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 "Asia/Pacific Underwriting Agreement") providing for the sale by the Selling Shareholders (including the Estate of Bernice Pauahi Bishop) of up to a total of 1,150,000 shares of Stock (the "Asia/Pacific Shares"), including the option to purchase additional shares thereunder, through arrangements with certain underwriters in the Asia/Pacific region (the "Asia/Pacific Underwriters"), for whom Goldman Sachs (Asia) L.L.C., BOCI Asia Limited, China Development Industrial Bank Inc., China International Capital Corporation (Hong Kong) Limited, Daiwa Securities SB Capital Markets Hong Kong Limited, The Development Bank of Singapore Ltd, HSBC Investment Bank Asia Limited, Jardine Fleming Securities Limited, Kokusai Securities (Hong Kong) Limited, Kotak Mahindra (International) Limited, The Nikko Merchant Bank (Singapore) Limited, Nomura International (Hong Kong) Limited, Samsung Securities Co., Ltd and Were Stockbroking Ltd are acting as lead managers. Anything herein or therein to the contrary notwithstanding, the respective closings under this Agreement, the U.S. Underwriting Agreement and the Asia/Pacific Underwriting Agreement are hereby expressly made conditional on one another. The Underwriters hereunder, the U.S. Underwriters and the Asia/Pacific 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 Asia/Pacific Shares and the other relating to the U.S. Shares. The other two forms of prospectus will be identical to the International Prospectus except for the front cover page, the back cover -2- 3 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 Asia/Pacific 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. 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 International ("GSI"), 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 each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Selling Stockholders, as and to the extent indicated in Schedule II hereto, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction the numerator of which is the maximum -3- 4 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 600,000 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering overallotments in the sale of the Firm Shares. Any such election to purchase Optional Shares shall be made in proportion to the Optional Shares to be sold by each Selling Stockholder. Any such election to purchase Optional Shares may be exercised only by written notice from you to the Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (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 GSI 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 (International Version) and Selling Agreement (International 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 (International 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 GSI 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 GSI, including, at the option of GSI, 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 GSI 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 GSI 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 GSI in the written notice given by GSI of the Underwriters' election to purchase such Optional Shares, or such other time and date as GSI 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". -4- 5 (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, 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 GSI expressly for use therein. -5- 6 (b) Each Selling Stockholder, severally and not jointly, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein; and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that such Selling Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through GSI 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 GSI 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 -6- 7 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 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 Stockholders. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Stockholders on the one hand -7- 8 or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, each of the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and no Selling Stockholder shall be required to contribute an amount that, together with any other payments made pursuant to this Section 8, exceeds the net proceeds received by such Selling Stockholder from the sale of its Shares pursuant to this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint. (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 -8- 9 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 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 -9- 10 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 GSI for all out-of-pocket expenses approved in writing by GSI, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling Stockholders shall then be under no further liability to any Underwriter in respect of the Shares not so delivered except as provided in Sections 6 and 8 hereof. 12. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly or by GSI 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 GSI, Peterborough Court, 133 Fleet Street, London EC4A 2BB, England, Attention: Equity Capital Markets, Telex No. 94012165, facsimile transmission No. (0207) 774- 1550; 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 GSI 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 -10- 11 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 (International 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. -11- 12 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 -12- 13 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 ----------------------------------- -13- 14 * ____________________________________ 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 -14- 15 * ____________________________________ Christopher J. Carrera * ____________________________________ Mary Ann Casati * ____________________________________ Anahue Trust * ____________________________________ Zachariah Cobrinik * ____________________________________ Gary D. Cohn * ____________________________________ Christopher A. Cole * ____________________________________ Carlos A. Cordeiro * ____________________________________ Henry Cornell * ____________________________________ Jon S. Corzine * ____________________________________ Frank L. Coulson, Jr. * ____________________________________ Randolph L. Cowen * ____________________________________ Timothy D. Dattels * ____________________________________ Gavyn Davies -15- 16 * ____________________________________ David A. Dechman * ____________________________________ Robert V. Delaney, Jr. * ____________________________________ Alexander C. Dibelius * ____________________________________ John O. Downing * ____________________________________ C. Steven Duncker * ____________________________________ Glenn P. Earle * ____________________________________ Paul S. Efron * ____________________________________ Pieter Maarten Feenstra * ____________________________________ Lawton W. Fitt * ____________________________________ David B. Ford * ____________________________________ Edward C. Forst * ____________________________________ Christopher G. French * ____________________________________ Richard A. Friedman -16- 17 * ____________________________________ Joseph D. Gatto * ____________________________________ Peter C. Gerhard * ____________________________________ Jeffrey B. Goldenberg * ____________________________________ Jacob D. Goldfield * ____________________________________ Amy O. Goodfriend * ____________________________________ Andrew M. Gordon * ____________________________________ Geoffrey T. Grant * ____________________________________ Joseph D. Gutman * ____________________________________ Robert S. Harrison * ____________________________________ Thomas J. Healey * ____________________________________ Sylvain M. Hefes * ____________________________________ Vyrona Trust * ____________________________________ David B. Heller -17- 18 * ____________________________________ Mary C. Henry * ____________________________________ Jacquelyn M. Hoffman-Zehner * ____________________________________ M. Blair Hull * ____________________________________ Timothy J. Hunter * ____________________________________ Fern Hurst * ____________________________________ Robert J. Hurst * ____________________________________ Timothy J. Ingrassia * ____________________________________ Reuben Jeffery III * ____________________________________ Stefan J. Jentzsch * ____________________________________ Barry A. Kaplan * ____________________________________ Robert J. Katz * ____________________________________ Kevin W. Kennedy * ____________________________________ Douglas W. Kimmelman -18- 19 * ____________________________________ Bradford C. Koenig * ____________________________________ Jonathan L. Kolatch * ____________________________________ David G. Lambert * ____________________________________ Thomas D. Lasersohn * ____________________________________ Matthew G. L'Heureux * ____________________________________ Lawrence H. Linden * ____________________________________ Robert Litterman * ____________________________________ Robert H. Litzenberger * ____________________________________ James Lodas * ____________________________________ Jonathan M. Lopatin * ____________________________________ Michael R. Lynch * ____________________________________ Ronald G. Marks * ____________________________________ Eff W. Martin -19- 20 * ____________________________________ John P. McNulty * ____________________________________ E. Scott Mead * ____________________________________ T. Willem Mesdag * ____________________________________ Eric M. Mindich * ____________________________________ Steven T. Mnuchin * ____________________________________ Karsten N. Moller * ____________________________________ The Karsten Moller and Barbara Kahn-Moller Trust * ____________________________________ Thomas K. Montag * ____________________________________ Robert B. Morris III * ____________________________________ Michael P. Mortara * ____________________________________ Sharmin Mossavar-Rahmani * ____________________________________ Edward A. Mule * ____________________________________ Thomas S. Murphy, Jr. -20- 21 * ____________________________________ Avi M. Nash * ____________________________________ Daniel M. Neidich * ____________________________________ Kipp M. Nelson * ____________________________________ Robin Neustein * ____________________________________ Suzanne M. Nora Johnson * ____________________________________ Michael E. Novogratz * ____________________________________ Majix Limited * ____________________________________ Terence J. O'Neill * ____________________________________ Timothy J. O'Neill * ____________________________________ Donald C. Opatrny, Jr. * ____________________________________ Robert J. O'Shea * ____________________________________ Greg M. Ostroff * ____________________________________ Robert J. Pace -21- 22 * ____________________________________ Gregory K. Palm * ____________________________________ Scott M. Pinkus * ____________________________________ John J. Powers * ____________________________________ Michael A. Price * ____________________________________ Scott S. Prince * ____________________________________ Stephen D. Quinn * ____________________________________ Michael G. Rantz * ____________________________________ Girish V. Reddy * ____________________________________ Arthur J. Reimers III * ____________________________________ James P. Riley, Jr. * ____________________________________ Simon M. Robertson * ____________________________________ J. David Rogers * ____________________________________ Emmanuel Roman -22- 23 * ____________________________________ Rayas Trust * ____________________________________ Ralph F. Rosenberg * ____________________________________ Stuart M. Rothenberg * ____________________________________ Michael S. Rubinoff * ____________________________________ Richard M. Ruzika * ____________________________________ Jeri Lynn Ryan * ____________________________________ Michael D. Ryan * ____________________________________ Joseph Sassoon * ____________________________________ Muneer A. Satter * ____________________________________ Jonathan S. Savitz * ____________________________________ Peter Savitz * ____________________________________ Howard B. Schiller * ____________________________________ Antoine Schwartz -23- 24 * ____________________________________ Eric S. Schwartz * ____________________________________ Charles B. Seelig, Jr. * ____________________________________ Steven M. Shafran * ____________________________________ Richard G. Sherlund * ____________________________________ Michael S. Sherwood * ____________________________________ Howard A. Silverstein * ____________________________________ Dinakar Singh * ____________________________________ Christian J. Siva-Jothy * ____________________________________ Cody J Smith * ____________________________________ Jonathan S. Sobel * ____________________________________ Marc A. Spilker * ____________________________________ Daniel W. Stanton * ____________________________________ Esta E. Stecher -24- 25 * ____________________________________ 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 * ____________________________________ Robert B. Tudor III * ____________________________________ Malcolm B. Turnbull -25- 26 * ____________________________________ 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 * ____________________________________ Danny Yee -26- 27 * ____________________________________ Gregory H. Zehner * ____________________________________ Joseph R. Zimmel * ____________________________________ Barry Zubrow * ____________________________________ Mark A. Zurack * By: /s/ John A. Thain ----------------------------- John A. Thain Attorney-in-Fact -27- 28 Accepted as of the date hereof: Goldman Sachs International ABN AMRO Rothschild Bayerische Hypo- und Vereinsbank Aktiengesellschaft 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 UBS AG, acting through its business group UBS Warburg By: Goldman Sachs International By: /s/ Frederick J. Knecht --------------------------------- (Attorney-in-Fact) On behalf of each of the Underwriters EX-99.V 7 ex99-v.txt UNDERWRITING AGREEMENT (ASIA) 1 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 2 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. -2- 3 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 -3- 4 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, -4- 5 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 -5- 6 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 -6- 7 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 -7- 8 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 -8- 9 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- 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- -----END PRIVACY-ENHANCED MESSAGE-----