0000950157-01-500601.txt : 20011009
0000950157-01-500601.hdr.sgml : 20011009
ACCESSION NUMBER: 0000950157-01-500601
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20011002
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: KAMEHAMEHA ACTIVITIES ASSOCIATION
CENTRAL INDEX KEY: 0001086510
STANDARD INDUSTRIAL CLASSIFICATION: []
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 567 SMITH KING STREET
STREET 2: SUITE 228
CITY: HONOLULU
STATE: HI
ZIP: 96813
MAIL ADDRESS:
STREET 1: 567 SMITH KING STREET
STREET 2: SUITE 228
CITY: HONOLULU
STATE: HI
ZIP: 96813
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/
CENTRAL INDEX KEY: 0000886982
STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211]
IRS NUMBER: 133501777
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1126
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-56295
FILM NUMBER: 1750906
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. 6
SECURITIES EXCHANGE COMMISSION
Washington, D.C. 20549
=============================================================================
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)
Amendment No. 6
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)
Wallace G. K. Chin
Kamehameha Activities Association
567 South King Street
Honolulu, Hawaii 96813
Telephone: (808) 523-6299
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications)
-----------------------------------------------------------------------------
September 26, 2001
-----------------------------------------------------------------------------
(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 statement because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
(Continued on following pages)
CUSIP NO. 38141G 10 4 13D
-------------------------------------
1. NAMES OF REPORTING PERSONS
Kamehameha Activities Association
-----------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
As to a group consisting of the KAA(1) and the Estate of Bernice
Pauahi Bishop (a) [x]
As to a group consisting of the Covered Persons(1) and SMBC(1)
(b) [x]
-----------------------------------------------------------------------------
3. SEC USE ONLY
-----------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [ ]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Hawaii
-----------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER (See Item 6)
SHARES 0
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER (See Item 6)
EACH 248,934,195 Covered Shares(1) and
REPORTING Uncovered Shares(1) in the aggregate(2) held
PERSON by Covered Persons(1)
WITH 5,455,197 shares(2) held by KAA(1)
8,670,527 shares held by SMBC(1)
-----------------------------------------------------
9. SOLE DISPOSITIVE POWER (See Item 6)
5,455,197
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER (See Item 6)
0
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,455,197(3)
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [x]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.1%(3)
-----------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
00
-----------------------------------------------------------------------------
________________________________
(1) For a definition of this term, please see Item 2.
(2) Each of KAA and the Estate of Bernice Pauahi Bishop may be deemed to be
members of a "group" with SMBC and the Covered Persons. Each of KAA and
the Estate of Bernice Pauahi Bishop disclaims beneficial ownership of
shares of Common Stock held by SMBC and the Covered Persons.
(3) Excludes 248,934,195 and 8,670,527 shares of Common Stock held by the
Covered Persons and SMBC, respectively, as to which each of KAA and the
Estate of Bernice Pauahi Bishop disclaims beneficial ownership of
shares of Common Stock held by SMBC and Covered Persons.
2
CUSIP NO. 38141G 10 4 13D
-------------------------------------
1. NAMES OF REPORTING PERSONS
Estate of Bernice Pauahi Bishop
-----------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
As to a group consisting of the KAA(1) and the Estate of Bernice
Pauahi Bishop (a) [x]
As to a group consisting of the Covered Persons(1) and SMBC(1)
(b) [x]
-----------------------------------------------------------------------------
3. SEC USE ONLY
-----------------------------------------------------------------------------
4. SOURCE OF FUNDS
OO
-----------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [ ]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
-----------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Hawaii
-----------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER (See Item 6)
SHARES 0
BENEFICIALLY -----------------------------------------------------
OWNED BY 8. SHARED VOTING POWER (See Item 6)
EACH 248,934,195 Covered Shares(1)
REPORTING and Uncovered Shares(1) in the aggregate(2) held
PERSON by Covered Persons(1)
WITH 5,455,197 shares(2) held by KAA(1)
8,670,527 shares held by SMBC(1)
-----------------------------------------------------
9. SOLE DISPOSITIVE POWER (See Item 6)
5,455,197
-----------------------------------------------------
10. SHARED DISPOSITIVE POWER (See Item 6)
0
-----------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,455,197(3)
-----------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [x]
-----------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.1%(3)
-----------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
00
-----------------------------------------------------------------------------
________________________________
(1) For a definition of this term, please see Item 2.
(2) Each of KAA and the Estate of Bernice Pauahi Bishop may be deemed to be
members of a "group" with SMBC and the Covered Persons. Each of KAA and
the Estate of Bernice Pauahi Bishop disclaims beneficial ownership of
shares of Common Stock held by SMBC and the Covered Persons.
(3) Excludes 248,934,195 and 8,670,527 shares of Common Stock held by the
Covered Persons and SMBC, respectively, as to which each of KAA and the
Estate of Bernice Pauahi Bishop disclaims beneficial ownership of
shares of Common Stock held by SMBC and Covered Persons.
3
This Amendment No. 6 to the Schedule 13D amends and restates in its
entirety such Schedule 13D. This Amendment No. 6 is being filed because on
September 26, 2001, SMBC (as defined below) entered into an Underwriting
Agreement with GS Inc. (as defined below) and Goldman, Sachs & Co. ("GS&Co.")
pursuant to which, on October 1, 2001, SMBC sold an aggregate of 6,073,083
shares of Common Stock of GS Inc. (as defined below) to the underwriters
listed therein (the "Underwriters") at $67.23 per share. The Common Stock was
offered to the public at $68.25 per share pursuant to a prospectus (the
"Prospectus") dated September 26, 2001 and made part of the Registration
Statement on Form S-3 filed by GS Inc. (File No. 333-67110) (the "Registration
Statement").
Item 1. Security and Issuer
This statement 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) This Schedule 13D is being filed by Kamehameha
Activities Association, a Hawaii not-for-profit corporation ("KAA"), which is
wholly owned by the Estate of Bernice Pauahi Bishop, a private educational
charitable trust organized under the laws of the State of Hawaii (the "Bishop
Estate"). KAA is organized exclusively for the benefit of, and to carry out
the purposes of the Bishop Estate. The Bishop Estate is a private educational
charitable trust organized under the laws of the State of Hawaii for the
purposes of operating primary and secondary educational institutions for the
children of native Hawaiians. The address of KAA's and the Bishop Estate's
principal business and office is 567 South King Street, Honolulu, Hawaii
96813. The name, citizenship, business address and present principal
occupation or employment of the directors and executive officers of each of
KAA and the Bishop Estate is set forth in Annex A to this Schedule 13D.
This Schedule contains certain information relating to (i) certain
managing directors of GS Inc. who beneficially own Common Stock subject to a
Shareholders' Agreement ("Covered Shares"), dated as of May 7, 1999, to which
these managing directors of GS Inc. are party (as amended from time to time,
the "Shareholders' Agreement" and such managing directors, the "Covered
Persons") and (ii) SMBC Capital Markets, Inc. (formerly known as Sumitomo Bank
Capital Markets, Inc.) ("SMBC"), who may be deemed to be members of a "group"
with KAA or the Bishop Estate. Each of KAA and the Bishop Estate hereby
disclaims beneficial ownership of: (i) the Covered Shares; (ii) shares of
Common Stock which may be purchased from time to time by Covered Persons for
investment purposes which are not subject to the Shareholders' Agreement
("Uncovered Shares") and (iii) the shares of Common Stock subject to the
Voting Agreement between SMBC and GS Inc. (the "SMBC Shares"), referred to
below (see Item 6). All information contained in this Schedule relating to the
Covered Persons and SMBC has been derived from the filings of GS Inc. and SMBC
with the Securities and Exchange Commission, including, but not limited to,
the Prospectus dated September 26, 2001, made part of the Registration
Statement, Amendment No. 18 to Schedule 13D filed by the Covered Persons on
August 7, 2001 and Amendment No. 6 to Schedule 13D filed by SMBC on October 1,
2001. The Covered Persons and SMBC each have filed a Schedule 13D with respect
to the shares of Common Stock and other equity securities of GS Inc. which
they beneficially own; the reader is referred to such filings and any
amendments thereto for more recent and complete information relating to the
Covered Persons and SMBC.
(d), (e) Except as described in Annex B, during the last five years,
none of KAA or the Bishop Estate or, to the best knowledge of KAA or the
Bishop Estate, any of their respective executive officers or directors, has
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), nor has any of them been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or financial order
enjoining future violations of, or prohibiting activities subject to, federal
or state securities laws or finding any violation of such laws.
Item 3. Source and Amount of Funds or Other Consideration
The Common Stock was acquired by KAA and the Bishop Estate in
exchange for their interests in The Goldman Sachs Group L.P. ("Group L.P.")
and certain of its affiliates.
Item 4. Purpose of Transactions
KAA and the Bishop Estate acquired the Common Stock reported
hereunder in connection with the succession of GS Inc. to the business of
Group L.P. and GS Inc.'s initial public offering. This Amendment No. 6 to
Schedule 13D is being filed because of the sale by SMBC of 6,073,083 shares of
Common Stock of GS Inc. to the Underwriters at $67.23 per share pursuant to an
Underwriting Agreement dated September 26, 2001. Except as described in Item
6, none of KAA or the Bishop Estate or their respective executive officers or
directors 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 of KAA and the Bishop Estate and their respective executive
officers and directors is expected to evaluate on an ongoing basis GS Inc.'s
financial condition and prospects and their interests in and with respect to
GS Inc. Accordingly, each of KAA and the Bishop Estate and their respective
executive officers and directors may change their plans and intentions at any
time and from time to time. In particular, each of KAA and the Bishop Estate
and their respective executive officers and directors may at any time and from
time to time acquire or dispose of shares of Common Stock.
4
Item 5. Interest in Securities of the Issuer
(a) Rows (11) and (13) of the cover pages to this Schedule (including
the footnotes thereto) and Annex A are hereby incorporated by reference. Each
of KAA and the Bishop Estate hereby disclaims beneficial ownership of any
shares of Common Stock held by any Covered Person or of the SMBC Shares.
(b) Rows (7) through (10) of the cover pages to this Schedule and
Annex A including the footnotes thereto set forth the percentage range of
Common Stock 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 vote or direct the vote or to dispose or
direct the disposition. The power to vote the Common Stock subject to the
Voting Agreement between KAA, the Bishop Estate and GS Inc. referred to below
(see Item 6) (the "KAA Shares") is shared with the Covered Persons, as
described below in response to Item 6. Each of KAA and the Bishop Estate
hereby disclaims beneficial ownership of any shares of Common Stock held by
any Covered Person or of the SMBC Shares.
(c) Except as described in Annex C, neither KAA or the Bishop Estate,
or to the best knowledge of KAA or the Bishop Estate, any of their respective
executive officers or directors, has effected any transactions in Common Stock
during the past 60 days. Amendment No. 18 to the Schedule 13D filed by the
Covered Persons on August 7, 2001 and Amendment No. 6 to the Schedule 13D
filed by SMBC on October 1, 2001 report certain transactions in the Common
Stock effected by the Covered Persons and SMBC, respectively, during the 60
days preceding such filing; the reader is referred to such filings for
information relating to such transactions.
(d), (e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
KAA VOTING AGREEMENT
KAA and the Trustees of the Bishop Estate have entered into a voting
agreement with GS Inc., dated April 30, 1999 (the "KAA Voting Agreement"), in
which they have 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 KAA Voting Agreement will
result in the shares of Common Stock owned by KAA being voted in the same
manner as the Covered Shares. The Covered Persons and SMBC are not parties to
the KAA Voting Agreement, and the KAA Voting Agreement is not enforceable by
the Covered Persons or SMBC, will continue to exist independent of the
existence of the Shareholders' Agreement and the SMBC Voting Agreement and may
be amended, waived or canceled by GS Inc. without any consent or approval of
the Covered Persons or SMBC. The KAA Voting Agreement is incorporated by
reference as an exhibit to this Schedule 13D and the foregoing summary is
qualified in its entirety by reference thereto.
Each of KAA and the Bishop Estate hereby disclaims beneficial
ownership of the Covered Shares.
SHAREHOLDERS' AGREEMENT
GS Inc. has disclosed that the Covered Persons are party to the
Shareholders' Agreement. The Covered Shares subject to the Shareholders'
Agreement are subject to certain voting restrictions and restrictions on
transfer of ownership by the Covered Persons, as more fully set forth in the
Shareholders' Agreement.
Each of KAA and the Bishop Estate hereby disclaims beneficial
ownership of the Covered Shares.
SMBC VOTING AGREEMENT
GS Inc. has disclosed that SMBC has entered into a voting agreement
with GS Inc., dated April 30, 1999 (the "SMBC Voting Agreement"), in which
they have 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.
Each of KAA and the Bishop Estate hereby disclaims beneficial
ownership of the SMBC Shares.
5
UNDERWRITING AGREEMENT
On September 26, 2001, SMBC entered into an Underwriting Agreement
with GS Inc. and GS&Co. to sell 6,073,083 shares of Common Stock of GS Inc. to
the Underwriters, and on October 1, 2001, the shares were sold to the
Underwriters at $67.23 per share. The shares of Common Stock were offered to
the public at $68.25 per share. On October 1, 2001, SMBC received $408,293,370
in proceeds (after an underwriting discount and before offering expenses) in
the underwritten public offering. Pursuant to the Underwriting Agreement, SMBC
has agreed to pay fees and expenses directly relating to the sale and purchase
of the shares of Common Stock, including (i) the fees, disbursements and
expenses of the Underwriters' counsel and accountants in connection with the
preparation, printing and filing of the Registration Statement, the Prospectus
and any preliminary prospectus, (ii) the cost of printing or producing the
Underwriting Agreement and other documents in connection with the offering,
purchase, sale and delivery of the Common Stock, (iii) filing fees and fees
and disbursements of counsel in connection with securing any review by the
National Association of Securities Dealers, Inc. on the terms of the sale,
(iv) the cost and charges of any transfer agent or registrar, (v) their own
counsel fees and (vi) all transfer taxes incident to the sale and delivery of
the Common Stock. In addition, pursuant to the Underwriting Agreement, SMBC
has agreed to indemnify the Underwriters against certain liabilities,
including those arising under the Securities Act of 1933, as amended. This
summary of the Underwriting Agreement is qualified in its entirety by
reference to the Underwriting Agreement which is filed as an Exhibit to this
Schedule.
Item 7. Material to be Filed as Exhibits
Exhibit Description
A. 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 10.37 to the registration statement on Form S-1
(File No. 333-74449) filed by The Goldman Sachs Group, Inc.).
B. Underwriting Agreement, dated as of September 26, 2001.
6
ANNEX A
Information required as to Executive Officers and Directors of KAA and the
Bishop Estate, respectively.
Name Citizenship Residence or Business Present principal Aggregate
Address occupation and name of Number and
business where such Percentage of
occupation is conducted Common
Stock
Beneficially
Owned
---------------------------- --------------- ---------------------------- ------------------------------ ------------------
Robert Kalani Uichi USA 567 South King Street President, USS Missouri None.
Kihune #200 Memorial Association, Inc.
Honolulu, Hawaii 96813 and Trustee of the Estate
of Bernice Pauahi Bishop
Constance Hee Lau USA 567 South King Street Chief Executive Officer, None.
#200 American Savings Bank
Honolulu, Hawaii 96813 and Trustee of the Estate
of Bernice Pauahi Bishop
J. Douglas Keauhou Ing USA 567 South King Street Attorney at Law and None.
#200 Trustee of the Estate of
Honolulu, Hawaii 96813 Bernice Pauahi Bishop
Diane J. Plotts USA 567 South King Street General Partner, Mideast None.
#200 & China Trading Company
Honolulu, Hawaii 96813 and Trustee of the Estate
of Bernice Pauahi Bishop
C. Nainoa Thompson USA 567 South King Street Program Director, None.
#200 Polynesian Voyaging
Honolulu, Hawaii 96813 Society and Trustee of the
Estate of Bernice Pauahi
Bishop
Wallace G. K. Chin USA 567 South King Street President, Kamehameha None.
#200 Activities Association
Honolulu, Hawaii 96813
Wendell F. Brooks, Jr. USA 567 South King Street Chief Investment Officer, None.
#200 Kamehameha Schools
Honolulu, Hawaii 96813 Bishop Estate and Vice
President, Kamehameha
Activities Association
Eric K. Yeaman USA 567 South King Street Chief Financial Officer, None.
#200 Kamehameha Schools
Honolulu, Hawaii 96813 Bishop Estate and
Treasurer, Kamehameha
Activities Association
Allan Yee USA 567 South King Street Senior Counsel, None.
#200 Kamehameha Schools
Honolulu, Hawaii 96813 Bishop Estate and
Secretary, Kamehameha
Activities Association
7
ANNEX B
Information required as to proceedings described in Items 2(d) and 2(e)
None.
8
ANNEX C
Item 5(c). Description of all transactions in the Common Stock effected
during the last 60 days by KAA or the Bishop Estate, or, to
the best knowledge of KAA or the Bishop Estate, their
respective executive officers and directors.
None.
9
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: October 1, 2001
KAMEHAMEHA ACTIVITIES ASSOCIATION
By: /s/ Wallace G. K. Chin
--------------------------------
Name: Wallace G. K. Chin
Title: President
ESTATE OF BERNICE PAUAHI BISHOP
By: /s/ Eric Yeaman
--------------------------------
Name: Eric Yeaman
Title: Chief Financial Officer
10
EXHIBIT INDEX
Exhibit Description
A. 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 10.37 to the
registration statement on Form S-1 (File No. 333-74449) filed
by The Goldman Sachs Group, Inc.).
B. Underwriting Agreement, dated as of September 26, 2001.
11
EX-1
3
ex-1.txt
UNDERWRITING AGREEMENT
Exhibit B
THE GOLDMAN SACHS GROUP, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
---------------------------------------
September 26, 2001
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
A stockholder of The Goldman Sachs Group, Inc., a Delaware
corporation (the "Company"), named in Schedule II hereto (the "Selling
Stockholder") proposes, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 6,073,083 shares (the "Shares") of common stock, par value $.01
per share ("Stock"), of the Company.
1. (a) The Company represents and warrants to, and agrees with
the Underwriters that:
(i) A registration statement on Form S-3 (File No.
333-67110) (the "Initial Registration Statement") in respect of the
Shares has 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, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became or will become effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to
NY12530: 223743.7
Rule 424(b) under the Act in accordance with Section 5(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective and (ii)
the documents incorporated by reference in the prospectus contained
in the Initial Registration Statement at the time such part of the
Initial Registration Statement became effective, each as amended at
the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement);
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by Goldman, Sachs & Co. expressly for use therein or
by the Selling Stockholder expressly for use in the preparation of
the answers therein to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by Goldman, Sachs & Co. expressly for use
therein or by the Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-3;
(iv) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects,
to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
Goldman, Sachs & Co. expressly for use therein or by the Selling
Stockholder expressly for use in the preparation of the answers
therein to Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries (the
"Significant Subsidiaries") that are listed or that are required to
be listed in Exhibit 21.1 to the Company's Annual Report on Form 10-K
for the fiscal year ended November 24, 2000 (the "2000 Annual
Report") has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented; and, since the respective
dates as of which information is given in the Registration Statement
and the Prospectus as amended or supplemented, there has not been any
material change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented;
(vi) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries;
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business
as described in the Prospectus; the Company has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; each corporate subsidiary of the Company that is a
Significant Subsidiary (a "Corporate Significant Subsidiary"), each
partnership subsidiary of the Company in which the Company or one of
its subsidiaries is a general partner that is a Significant
Subsidiary (a "Partnership Significant Subsidiary"), each unlimited
liability company subsidiary of the Company that is a Significant
Subsidiary (a "ULLC Significant Subsidiary") and each limited
liability company in which the Company or one of its subsidiaries is
a managing member that is a Significant Subsidiary (an "LLC
Significant Subsidiary") has been duly incorporated or organized, as
the case may be, and is validly existing as a corporation,
partnership, unlimited liability company or limited liability
company, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or organization, as the case may be,
with the power (corporate, partnership, unlimited liability company
or limited liability company, as the case may be) and authority to
own its properties and conduct its business as described in the
Prospectus;
(viii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company, including the Shares, have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform to the description of the capital stock contained in the
Prospectus; all of the issued shares of capital stock of each
Corporate Significant Subsidiary, all of the issued shares of each
ULLC Significant Subsidiary and all of the membership interests in
each LLC Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and, in the case of any Corporate
Significant Subsidiaries and LLC Significant Subsidiaries, are
non-assessable and (except for (A) directors' qualifying shares and
(B) 50% of the interests in Goldman Sachs Holdings L.L.C.) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; and all of the partnership
interests in each Partnership Significant Subsidiary have been duly
and validly created and (except for interests in Goldman Sachs Mitsui
Marine Derivative Products, L.P.) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(ix) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or the organizational
documents of any of its Significant Subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries
or any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required to be obtained or made by the
Company for the sale of the Shares or the consummation by the Company
of the transactions contemplated by
this Agreement, except the registration under the Act of the Shares,
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities
or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters;
(x) Neither the Company nor any of its Significant
Subsidiaries is in violation of its organizational documents or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(xi) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the securities described
therein, and in the Prospectus under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(xii) Other than as set forth in the Prospectus 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, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xiii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company",
as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(xiv) The Company and its Significant Subsidiaries possess
all concessions, permits, licenses, consents, exceptions, franchises,
authorizations, orders, registrations and qualifications issued by
the appropriate Federal, state and foreign governments, governmental
or regulatory authorities, self-regulatory organizations and all
courts or other tribunals, and are members in good standing of each
Federal, state or foreign exchange, board of trade, clearing house or
association and self-regulatory or similar organization necessary to
conduct their respective businesses as described in the Prospectus,
except as would not, individually or in the aggregate, have a
material adverse effect on the prospects, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and
(xv) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries and SLK LLC
and its subsidiaries, are independent public accountants as required
by the Act and the rules and regulations of the Commission
thereunder.
(b) the Selling Stockholder represents and warrants to, and agrees
with, the Underwriters and the Company that:
(i) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any other person is
required for the execution and delivery of this Agreement, the Power
of Attorney and the Custody Agreement, in each case, referred to in
clause (vii) below, the sale of the Shares or the consummation by the
Selling Stockholder of the transactions contemplated by this
Agreement, the Power of Attorney or the Custody Agreement, except
that the Selling Stockholder may need to file an amendment to any
report on Schedule 13D relating to the Company previously filed by
the Selling Stockholder and except the registration under the Act of
the Shares, which has been made, and such as may be required under
state securities or Blue Sky laws, which consents, approvals,
authorizations, orders and filings are the only consents, approvals,
authorizations, orders and filings necessary for the execution and
delivery by the Selling Stockholder of this Agreement, the Power of
Attorney and the Custody Agreement and for the sale and delivery of
the Shares hereunder and the Selling Stockholder has full right,
power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement and to sell, assign, transfer and
deliver the Shares to be sold hereunder;
(ii) The sale of the Shares hereunder and the compliance by
the Selling Stockholder with all of the provisions of this Agreement,
the Power of Attorney and the Custody Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a party or by which
the Selling Stockholder is bound, or to which any of the property or
assets of the Selling Stockholder is subject; nor will such action
result in any violation of the provisions of the certificate of
incorporation, by-laws or other organizational or constituent
documents of the Selling Stockholder or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property of the
Selling Stockholder;
(iii) The Selling Stockholder has, and immediately prior to
the Time of Delivery the Selling Stockholder will have, good and
valid title to the Shares, free and clear of all liens, encumbrances,
equities or claims, and, upon delivery of the Shares and payment
therefor pursuant hereto, good and valid title to the Shares, free
and clear of all liens, encumbrances, equities or claims, will pass
to the Underwriters;
(iv) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares;
(v) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to you prior to or
at the Time of Delivery a properly completed and executed United
States Treasury Department Form W-8BEN, W-8IMY or W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(vi) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto are made in
reliance upon and in conformity with written information furnished to
the Company by the Selling Stockholder expressly for use therein,
such Preliminary Prospectus and the Registration Statement did, and
the Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will, conform
in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and did not and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(vii) The Shares have been placed in custody under a
Non-ERISA Domestic Custody Agreement, dated May 7, 1999, together
with Instructions to Custodian, in each case, in the form heretofore
furnished to you (the "Custody Agreement"), duly authorized, executed
and delivered by the Selling Stockholder to The Chase Manhattan Bank,
as custodian (the "Custodian"); the Selling Stockholder has duly
authorized, executed and delivered a Power of Attorney, in the form
heretofore furnished to you (the "Power of Attorney"), appointing the
persons indicated in Schedule II hereto, and each of them, as the
Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact")
with authority to authorize the delivery of the Shares and otherwise
to act on behalf of the Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Custody
Agreement; and the Selling Stockholder has duly authorized, executed
and delivered this Agreement; and
(viii) The Shares are held in custody under the Custody
Agreement and are subject to the interests of the Underwriters under
this Agreement ; the arrangements made by the Selling Stockholder for
such custody, and the appointment by the Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent
irrevocable; the obligations of the Selling Stockholder hereunder
shall not be terminated by operation of law, whether, in the case of
an estate or trust, by the death, disability, incompetency or
incapacity of any executor or trustee or the termination of such
estate or trust, or in the case of a partnership or corporation, by
the dissolution of such partnership or corporation, or by the
occurrence of any other event; if any executor or trustee should die
or become disabled, incompetent or incapacitated, or if any such
estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should
occur, before the delivery of the Shares hereunder, the Shares shall
be delivered by or on behalf of the Selling Stockholder in accordance
with the terms and conditions of this Agreement and the Custody
Agreement; and actions taken by the Attorneys-in-Fact pursuant to the
Powers of Attorney shall be as valid as if such death, disability,
incompetency, incapacity, termination, dissolution or other event had
not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, disability, incompetency, incapacity, termination, dissolution
or other event.
2. Subject to the terms and conditions herein set forth, the Selling
Stockholder agrees to sell to the Underwriters, and Underwriters agree to
purchase from the Selling Stockholder, at the purchase price per share of
$67.23, the Shares.
3. Upon the authorization by you of the release of the Shares, the
Underwriters propose to offer the Shares for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Shares, in definitive form, and in such authorized
denominations and registered in such names as Goldman, Sachs & Co. may request
upon at least forty- eight hours' prior notice to the Selling Stockholder
shall be delivered by or on behalf of the Selling Stockholder to Goldman,
Sachs & Co., including, at the option of Goldman, Sachs & Co., through the
facilities of The Depository Trust Company ("DTC"), for the account of the
Underwriters, against payment by or on behalf of the Underwriters of the
purchase price therefor (net of expenses in the amount of $317,246 to be paid
by the Selling Stockholder at the Time of Delivery pursuant to Section 6) by
wire transfer of Federal (same-day) funds to the account specified to Goldman,
Sachs & Co. by the Custodian upon at least forty-eight hours' prior notice.
The Selling Stockholder will cause the certificates representing the Shares to
be made available for checking and packaging at least twenty-four hours prior
to the Time of Delivery at the office of Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004 or at the office of DTC or its designated
custodian, as the case may be (the "Designated Office"). The time and date of
such delivery and payment shall be 9:30 a.m., New York City time, on October
1, 2001 or such other time and date as Goldman, Sachs & Co. and the Selling
Stockholder may agree upon in writing. Such time and date for delivery of the
Shares is herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(i) hereof, will be delivered at the offices
of Sullivan & Cromwell, 125 Broad Street, New York, N.Y. 10004 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
the Time of Delivery. A meeting will be held at the Closing Location at 2:30
p.m., New York City time, on the second New York Business Day next preceding
the Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, "New York Business
Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in New York are generally authorized
or obligated by law or executive order to close.
5. The Company agrees with the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior
to the Time of Delivery (other than any amendment or supplement effected
through the filing of a report under the Exchange Act) which shall be
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus
is required in connection with the offering or sale of the Shares; to advise
you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or suspending
any such qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction; and to comply with all
applicable securities and other laws, rules and regulations in each such
jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering or
sale of the Shares and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus, to notify you and
upon your request to file such document and to prepare and furnish without
charge to the Underwriters and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance, and in case the Underwriters are required to deliver a
prospectus in connection with sales of any of the Shares at any time nine
months or more after the time of issue of the Prospectus, upon your request
but at the expense of the Underwriters, to prepare and deliver to the
Underwriters as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158 under the Act);
(e) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries
certified by independent public accountants) and, as soon as practicable after
the end of each of the first three quarters of each fiscal year (beginning
with the fiscal quarter ending after the effective date of the Registration
Statement), to make available to its stockholders consolidated summary
financial information of the Company and its subsidiaries for such quarter in
reasonable detail;
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders generally, and
to deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission); and
(g) If the Company elects to rely upon Rule 462(b) under the Act, to
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and at the time of filing to either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
6. The Company and the Selling Stockholder, jointly and severally,
covenant and agree with one another and with the Underwriters that the Selling
Stockholder will pay 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 this Agreement, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase,
sale and delivery of the Shares; (iii) 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; (iv) the cost and charges of any transfer agent or
registrar; (v) all expenses and taxes (domestic and foreign) incident to the
sale and delivery of the Shares by the Selling Stockholder to the
Underwriters; (vi) any fees and expenses of counsel for the Selling
Stockholder and (vii) all transfer taxes incident to the sale and delivery of
the Shares. The Selling Stockholder agrees that the expenses set forth in the
preceding sentence (other than the expenses of Bowne & Co., Inc., which the
Selling Stockholder will pay directly) will be deducted from the purchase
price for the Shares paid by or on behalf of the Underwriters at the Time of
Delivery. In connection with clause (vii) of the first sentence of this
Section 6, Goldman, Sachs & Co. agrees to pay New York State stock transfer
tax, and the Selling Stockholder agrees to reimburse Goldman, Sachs & Co. for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is understood,
however, that the Company shall bear, and the Selling Stockholder shall not be
required to pay or to reimburse the Company for, the cost of any other matters
not directly relating to the sale and purchase of the Shares pursuant to this
Agreement, and that, except as provided in this Section, and Sections 8 and 10
hereof, the Underwriters will pay all of their own costs and expenses, stock
transfer
taxes on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters, as to the Shares to be
delivered at the Time of Delivery, shall be subject, in the discretion of the
Underwriters, to the condition that all representations and warranties and
other statements of the Company and of the Selling Stockholder herein are, at
and as of the Time of Delivery, true and correct, the condition that the
Company and the Selling Stockholder shall have performed all of its and their
obligations hereunder theretofore to be performed and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Company has elected to rely upon Rule 462(b) under the Act, the
Rule 462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the reasonable
satisfaction of the Underwriters;
(b) Cravath, Swaine & Moore, special counsel for SMBC 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(a)
hereto), dated the Time of Delivery, in form and substance satisfactory to
you, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder;
(ii) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the consummation of the transactions contemplated by this Agreement
by the Selling Stockholder, except the registration under the Act of
the Shares, which has been duly obtained and is in full force and
effect, the filing of an amendment to the Selling Stockholder's
Schedule 13D and such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(iii) Good and valid title to the Shares, free and clear of
all liens, encumbrances, equities or claims, has been transferred to
the Underwriters, who have purchased the Shares in good faith and
without notice of any such lien, encumbrance, equity or claim or any
other adverse claim within the meaning of the Uniform Commercial
Code; and
(iv) The Power of Attorney and the Custody Agreement have
been duly executed and delivered by the Selling Stockholder and
constitute valid and binding agreements of the Selling Stockholder in
accordance with their terms.
In rendering such opinion, such counsel may state that they express
no opinion as to the laws of any jurisdiction other than the Federal laws of
the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware;
NY12530: 223743.7
(c) Robert A. Rabbino, counsel to SMBC 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(b) hereto), dated the
Time of Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The sale of the Shares by the Selling Stockholder
hereunder and the compliance by the Selling Stockholder with all of
the provisions of this Agreement, the Power of Attorney and the
Custody Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound, or to which any
of the property or assets of the Selling Stockholder is subject, nor
will such action result in any violation of the provisions of the
organizational documents of the Selling Stockholder or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Selling Stockholder or the property
of the Selling Stockholder;
(ii) Immediately prior to the Time of Delivery, the Selling
Stockholder had good and valid title to the Shares, free and clear of
all liens, encumbrances, equities or claims, and full right, power
and authority to sell, assign, transfer and deliver the Shares under
this Agreement; and
(iii) The Power of Attorney and the Custody Agreement have
been duly authorized, executed and delivered by the Selling
Stockholder and constitute valid and binding agreements of the
Selling Stockholder in accordance with their terms.
In rendering such opinion, such counsel may state that 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 the Selling
Stockholder in respect of matters of fact as to ownership of, and liens,
encumbrances, equities or claims on the Shares, provided that such counsel
shall state that he believes that you and he are justified in relying upon
such certificate;
(d) (i) Neither the Company nor any of its Significant Subsidiaries
shall have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented there shall not have been any material change in the capital
stock or long-term debt of the Company or any of its Significant Subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at the Time of Delivery on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(e) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities;
(f) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at the Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(g) The Shares to be sold by the Selling Stockholder at the Time of
Delivery shall have been duly listed on the New York Stock Exchange;
(h) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(i) The Company shall have furnished or caused to be furnished to
you, and the Selling Stockholder shall have furnished to you, at the Time of
Delivery, certificates of officers of the Company and of the Selling
Stockholder, respectively, satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling Stockholder,
respectively, herein at and as of the Time of Delivery, as to the performance
by the Company and the Selling Stockholder of all of their respective
obligations hereunder to be performed at or prior to the Time of Delivery, and
as to such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (d) of this Section, and as to such other matters
as you may reasonably request.
8. (a) The Company will indemnify and hold harmless the Underwriters
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriters may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Underwriters for any
legal or other expenses reasonably incurred by the Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement
in
reliance upon and in conformity with written information furnished to the
Company by Goldman, Sachs & Co. expressly for use therein.
(b) The Selling Stockholder will indemnify and hold harmless the
Underwriters against any losses, claims, damages or liabilities, joint or
several, to which the Underwriters may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by the Selling Stockholder expressly for use therein;
and will reimburse the Underwriters for any legal or other expenses reasonably
incurred by the Underwriters in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that
the Selling Stockholder shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by Goldman, Sachs
& Co. expressly for use therein; provided, further, that the liability of the
Selling Stockholder pursuant to this subsection (b) shall not exceed the
amount of net proceeds received by the Selling Stockholder from the sale of
the Shares.
(c) The Underwriters will indemnify and hold harmless the Company and
the Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or the Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by Goldman, Sachs & Co. expressly for use therein;
and will reimburse the Company and the Selling Stockholder for any legal or
other expenses reasonably incurred by the Company or the Selling Stockholder
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
an indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought under this Section 8
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholder taken together on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (d)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Selling Stockholder on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholder taken together on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Selling
Stockholder bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Shares purchased under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus,
and for purposes of the allocation of benefits under this sentence the Company
shall be deemed to have received all of the benefits received by the Selling
Stockholder. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholder on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Stockholder and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this
subsection (e) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), the Underwriters shall not be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and the Selling Stockholder shall not be required
to contribute an amount that, together with any other payments made pursuant
to this Section 8, exceeds the net proceeds received by the Selling
Stockholder from the sale of the Shares pursuant to this Agreement. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(f) The obligations of the Company and the Selling Stockholder under
this Section 8 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Underwriters within
the meaning of the Act; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls
the Company or the Selling Stockholder within the meaning of the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholder and
the Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Underwriters or any controlling person of
the Underwriters, or the Company, or any of the Selling Stockholder, or any
officer or director or controlling person of the Company, or any controlling
person of the Selling Stockholder, and shall survive delivery of and payment
for the Shares.
Anything herein to the contrary notwithstanding, the indemnity
agreements of the Company in subsection (a) of Section 8 hereof, the
representations and warranties in subsections (a)(ii), (a)(iii) and (a)(iv) of
Section 1 hereof and any representation or warranty as to the accuracy of the
Registration Statement or the Prospectus contained in any certificate
furnished by the Company pursuant to Section 7 hereof, insofar as they may
constitute a basis for indemnification for liabilities (other than payment by
the Company of expenses incurred or paid in the successful defense of any
action, suit or proceeding) arising under the Act, shall not extend to the
extent of any interest therein of a controlling person of the Underwriters who
is a director or officer who signed the Registration Statement or controlling
person of the Company when the Registration Statement became 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.
10. If for any reason the Shares are not delivered by or on behalf of
the Selling Stockholder as provided herein, the Selling Stockholder will
reimburse the Underwriters for all of their out-of-pocket expenses, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the Selling Stockholder shall then be under no
further liability to the Underwriters in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
11. In all dealings hereunder with the Selling Stockholder, you and
the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of the Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for the Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to Goldman, Sachs & Co., 85 Broad Street, New
York, New York 10004, Attention: Registration Department; if to the Selling
Stockholder shall be delivered or sent by mail, telex or facsimile
transmission to the Selling Stockholder at its address set forth in Schedule
II hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholder and, to
the extent provided in Sections 8 and 9 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Stockholder
or the Underwriters, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from
the Underwriters shall be deemed a successor or assign by reason merely of
such purchase.
13. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us three counterparts hereof, and upon the acceptance
hereof by the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among the Underwriters, the Company and the
Selling Stockholder.
Very truly yours,
The Goldman Sachs Group, Inc.
By: /s/ Elizabeth E. Beshel
-----------------------------------
Name: Elizabeth E. Beshel
Title: Assistant Treasurer
SMBC Capital Markets, Inc.
By: /s/ Naoyuki Kawamoto
-----------------------------------
Name: Naoyuki Kawamoto
Title: Chairman
Accepted as of the date hereof:
/s/ Goldman, Sachs & Co.
----------------------------------------
(Goldman, Sachs & Co.)
SCHEDULE I
Total Number
of Shares
Underwriters to be Purchased
------------ ---------------
Goldman, Sachs & Co........................................ 6,073,083
SCHEDULE II
Total Number
of Shares
Selling Stockholder To Be Sold
------------------- ---------------
SMBC Capital Markets, Inc.................................. 6,073,083
This Selling Stockholder, 277 Park Avenue, New York, New York 10172,
is represented by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue,
New York, New York 10019, as to matters of the Federal law of the United
States and the laws of the State of New York, and Robert A. Rabbino, Esq.,
General Counsel, Sumitomo Mitsui Banking Corporation, 277 Park Avenue, New
York, New York 10172, and has appointed Henry M. Paulson, Jr., Robert J.
Hurst, John A. Thain and John L. Thornton, and each of them, as the
Attorney-in-Fact for the Selling Stockholder.