Exhibit 10.31
March 15, 1999
Wally Chin
Kamehameha Activities Association
567 South King Street, Suite 301
Honolulu, HI 96813
Dear Mr. Chin:
This letter (this "Letter Agreement") sets forth the agreement among
Kamehameha Activities Association ("KAA" or "Knight") and The Goldman Sachs
Group, L.P. ("GS Group") with respect to certain matters, including matters
relating to the Plan of Incorporation (the "Plan") approved by the Schedule II
Limited Partners of GS Group in March 1999 pursuant to Paragraph 14 of Article I
of the Memorandum of Agreement of GS Group, as amended and restated November 28,
1998 (the "GS Group Partnership Agreement"). Set forth as Exhibit 1 hereto is a
true and complete copy of the Plan, in the form submitted to the Schedule II
Limited Partners of GS Group, together with all exhibits referred to therein.
Reference is made to the GS Group Partnership Agreement and to (i) the
Subscription Agreement, dated as of April 24, 1992 (the "1992 Subscription
Agreement"), among The Trustees of the Estate of Bernice Pauahi Bishop (the
"Bishop Estate"), Pauahi Holdings Corporation ("Knight's Parent") and Royal
Hawaiian Shopping Center, Inc. ("RHSC"), which has transferred all its interests
in GS Group to KAA pursuant to an Assumption Agreement (the "Assumption
Agreement") dated as of July 15, 1998 between KAA and RHSC for the benefit of GS
Group, and GS Group, (ii) the Subscription Agreement, dated as of November 21,
1994 (the "1994 Subscription Agreement" and, collectively with the 1992
Subscription Agreement, the "Subscription Agreements"), among the Bishop Estate,
Knight's Parent and RHSC and GS Group, and (iii) the Registration Rights
Agreement (the "Registration Rights Agreement"), dated as of April 24, 1992,
between RHSC and GS Group, as amended by Amendment No. 1 thereto dated November
24, 1994. KAA has assumed all of RHSC's rights and obligations under the
Subscription Agreements and the Registration Rights Agreement pursuant to the
Assumption Agreement. Capitalized terms used herein, but not otherwise defined
herein, shall have the meanings ascribed thereto in the Subscription Agreements
or the GS Partnership Agreement, as applicable. This Letter Agreement shall be a
modification of and an amendment
Kamehameha Activities Association
March 15, 1999
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to the Subscription Agreements and the Registration Rights Agreement to the
extent set forth herein.
The parties hereby agree as follows:
1. Adjustment to Part J Actual Capital and Part P Actual Capital;
Other Distributions. Upon calculation of any adjustment to KAA's Part J
Interest as of November 28, 1998 pursuant to Article VI, Section 3(c) of
the GS Group Partnership Agreement and KAA's Part P Interest as of
November 28, 1998 pursuant to Article VII, Section 3(c) of the GS Group
Partnership Agreement, the parties agree that the aggregate adjustment
pursuant to each such applicable Section 3(c)(iii) or (iv) shall be made
by a distribution of cash to KAA (if the adjustments contemplated by
clause (iii) are applicable in the aggregate) or by KAA contributing
additional capital to GS Group (if the adjustments contemplated by clause
(iv) are applicable in the aggregate), in each case in accordance with the
GS Group Partnership Agreement, and that Knight's Part J Actual Share and
Knight's Part P Actual Share will not be adjusted.
Pursuant to the existing capital withdrawal policy for Schedule II
Limited Partners of GS Group ("PLPs"), each PLP has been permitted to make
a withdrawal from his or her capital account. It is hereby agreed that KAA
shall be permitted, in accordance with Paragraph 14 of Article I of the GS
Group Partnership Agreement, to make a capital withdrawal, in the amount
of $29,026,979, which, to the extent that KAA is required to contribute
additional capital to GS Group pursuant to the first paragraph of this
Section 1, shall be netted against such capital contribution by KAA.
2. Common Stock to be Sold by KAA. KAA agrees that, if requested by
The Goldman Sachs Group, Inc. ("GS Inc."), KAA shall sell 9,000,000 shares
of Common Stock, $.01 par value, of GS Inc. ("Common Stock") in a
secondary offering as a part of the initial public offering ("IPO") of GS
Inc. KAA agrees (a) to sell such shares at the initial public offering
price established by GS Inc. and the underwriters in the IPO, and (b) to
cooperate fully in the registration and offering of such shares,
including, without limitation, (1) furnishing any information relating to
KAA or its affiliates necessary or advisable in the applicable
registration statement and (2) executing an underwriting agreement, all on
the same terms and conditions as are applicable to piggy-back
registrations pursuant to Section 2(b) of the Registration Rights
Agreement.
Kamehameha Activities Association
March 15, 1999
Page 3
3. Hedging Restrictions. To the extent that securities of GS Inc.
are subject to the limitations on disposition (otherwise than by the
consent of GS Inc.) set forth in Section 4(a) hereof and in addition to
the transfer restrictions set forth in the Subscription Agreements, as
amended, KAA agrees that it and each of its affiliates will comply with
the hedging restrictions of GS Inc. applicable to its managing directors
set forth on Annex A hereto; provided, that if GS Inc. relaxes such
hedging restrictions, such relaxation shall apply to KAA and its
affiliates and, provided, further, that such hedging restrictions shall
not apply to investment funds managed by persons unaffiliated with KAA in
which KAA has an interest.
4. Dispositions of Securities. (a) The provisions of Section
10(b)(iv) of each of the Subscription Agreements shall be replaced with
the following:
"In addition to the other restrictions on transfer included in this
Agreement, Knight agrees as follows:
(1) Other than as provided in Section 2 of the letter agreement
(the "Letter Agreement"), dated as of March 15, 1999, among Knight
and GS Group, and Section 10(b)(ii)(4) hereof, no securities of the
Company may be disposed of by Knight, whether pursuant to exercise
of demand rights or piggy-back rights, and no Disposition Notice may
be given, earlier than the first anniversary of the date of the
closing of the initial public offering of the Company (the "IPO
Date").
(2) Subsequent to the first anniversary of the IPO Date and
prior to the third anniversary of the IPO Date, Knight shall be
permitted to dispose of, whether pursuant to the exercise of demand
rights or piggy-back rights, in each 12-month period following the
first and second anniversaries of the IPO Date, shares of Common
Stock constituting in the aggregate up to 20% of the aggregate
number of shares of Common Stock that Knight received under the Plan
of Incorporation of the Partnership (the "Knight Original Block");
provided, however, that Knight, with the consent of the Company,
which shall not be unreasonably withheld, may subsequent to the
first anniversary of the IPO Date and prior
Kamehameha Activities Association
March 15, 1999
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to the third anniversary of the IPO Date dispose of, whether
pursuant to the exercise of demand rights or piggy-back rights, in
each 12-month period following the first and second anniversaries of
the IPO Date, shares of Common Stock constituting in the aggregate
up to an additional number of shares of Common Stock equal to (a)
13 1/3% of the Knight Original Block less (b) the number of shares
of Common Stock disposed of pursuant to Section 10(b)(iv)(4) hereof
in such 12-month period.
(3) Subsequent to the third anniversary of the IPO Date, Knight
may dispose of, whether pursuant to the exercise of demand rights or
piggy-back rights, in each 12-month period following such
anniversary shares of Common Stock constituting in the aggregate up
to 33 1/3% of the Knight Original Block.
(4) To the extent that the former Schedule II Limited Partners
of the Partnership who are managing directors immediately following
the IPO ("PMDs") sell shares of GS Inc. Common Stock in a secondary
offering in an amount which in any one-year period following the IPO
Date represents, in the aggregate, for all of such PMDs a greater
percentage of the total Common Stock issued to such PMDs in
connection with the Plan ("PMD Shares") than the applicable
percentage specified for such one-year period in paragraph (1)
(i.e., 0%), (2) (i.e., 20%) or (3) (i.e., 33 1/3%) above, Knight
will be permitted in such one year period to dispose of up to such
number of additional shares of Common Stock as would increase the
permitted sales by Knight in such one year period to such higher
percentage;
provided, that, the restrictions on transfer set forth in this
Section 10(d)(iv) shall no longer be applicable following a Change
of Control (as defined below) and any such disposition may
thereafter be made by Knight without regard to any such
restrictions. For purposes of this Section 10(d)(iv), "Change of
Control" means the consummation of a merger, consolidation,
statutory share exchange or similar form of corporate transaction
involving the Company (a "Reorganization") or sale or other
disposition of all or
Kamehameha Activities Association
March 15, 1999
Page 5
substantially all of the Company's assets to an entity that is not
an affiliate of the Company (a "Sale") that in each case requires
the approval of the Company's stockholders under the law of the
Company's jurisdiction of organization, whether for such
Reorganization or Sale (or the issuance of securities of the Company
in such Reorganization or Sale), unless immediately following such
Reorganization or Sale, either: (A) at least 50% of the total voting
power (in respect of the election of directors, or similar officials
in the case of an entity other than a corporation) of (x) the entity
resulting from such Reorganization, or the entity which has acquired
all or substantially all of the assets of the Company in a Sale (in
either case, the "Surviving Entity"), or (y) if applicable, the
ultimate parent entity that directly or indirectly has beneficial
ownership (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended as of the date hereof) of 50% or
more of the total voting power (in respect of the election of
directors, or similar officials in the case of an entity other than
a corporation) of the Surviving Entity (the "Parent Entity"), is
represented by the Company's securities (the "Company Securities")
that were outstanding immediately prior to such Reorganization or
Sale (or, if applicable, is represented by shares into which such
Company Securities were converted pursuant to such Reorganization or
Sale) or (B) at least 50% of the members of the board of directors
(or similar officials in the case of an entity other than a
corporation) of the Parent Entity (or, if there is no Parent Entity,
the Surviving Entity) following the consummation of the
Reorganization or Sale were, at the time of the approval of the
execution of the initial agreement providing for such Reorganization
or Sale by the Board of Directors of the Company, individuals (the
"Incumbent Directors") who either (1) were members of the Board of
Directors of the Company on the IPO Date or (2) became directors
subsequent to the IPO Date and whose election or nomination for
election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or
by approval of the proxy statement of the Company in which such
persons are named as a nominee for director)."
(b) KAA shall be permitted to deliver not more than 10 Disposition
Notices under the Subscription Agreements and shall not have the right to
deliver more than two Disposition Notices under the
Kamehameha Activities Association
March 15, 1999
Page 6
Subscription Agreements and the Registration Rights Agreement in each
12-month period following the IPO Date.
(c) Notwithstanding the foregoing restrictions on transferability of
securities of GS Inc. and delivery of Disposition Notices, KAA shall have
the right at any time to make a request of GS Inc. that KAA be permitted
to dispose of shares of Common Stock. GS Inc. agrees that any such request
will be given full consideration, taking into account such factors the
Board of Directors of GS Inc. believes relevant, provided that KAA
acknowledges and agrees that whether or not to grant any such request
shall be at the sole discretion of GS Inc.
5. Share Repurchases; Tender and Exchange Offers. If and to the
extent that GS Inc. makes a general offer to repurchase PMD Shares from
PMDs, GS Inc. shall permit KAA to participate as a seller in such
transaction on a pro rata basis with the PMDs and on the same terms and
conditions as apply to the PMDs. Notwithstanding anything in this Letter
Agreement, the GS Group Partnership Agreement, the Subscription Agreements
or the Registration Rights Agreement to the contrary, KAA may tender its
shares of Common Stock of GS Inc. in any tender or exchange offer if the
Board of Directors of GS Inc. is recommending acceptance of the tender or
exchange offer or is not making any recommendation with respect to
acceptance. Any shares of Common Stock purchased from KAA pursuant to this
Section 5 shall reduce the number of shares that may be disposed of by KAA
in the relevant 12-month period pursuant to Section 4 above.
6. Voting Agreement. KAA agrees that, at the request of GS Inc., it
will execute and deliver prior to the IPO Date the Voting Agreement
attached hereto as Annex B. The parties hereby agree that the proxies that
have been previously granted by KAA, Knight's Parent and the Bishop Estate
pursuant to the Subscription Agreements will be terminated and cancelled
upon the occurrence of (i) the consummation of the IPO and (ii) the
execution and delivery of the Voting Agreement attached hereto as Annex B.
7. Representations and Warranties. KAA hereby makes, and shall be
deemed to have remade on the IPO Date, each of the representations and
warranties set forth in Annex C attached hereto and
Kamehameha Activities Association
March 15, 1999
Page 7
agrees that counsel to GS Group may rely thereon in rendering an opinion
to GS Group as to tax matters.
8. Certain Tax Matters. Notwithstanding that the Plan may not be
consummated at the end of the fiscal year (as defined in the GS Group
Partnership Agreement) of GS Group, KAA shall receive a distribution with
respect to taxes on a pro rata basis with the United States PLPs and on
the same terms and conditions as apply to PLPs in accordance with Article
VI, Section 4 and Article VII, Section 4 of the GS Group Partnership
Agreement; provided, that any such distribution shall be made net of
interest at eight per cent per annum on KAA's Part J Actual Capital and
Part P Actual Capital to the IPO Date.
9. Stock Options. Each of the GS Group and GS Inc. represents and
warrants to KAA that the Plan does not provide for the issuance of, and
neither the GS Group nor GS Inc. has determined that GS Inc. will issue,
stock options for shares of Common Stock to either the General Partner or
some or all of the PLPs the issuance of which would require the prior
consultation of GS Group and KAA pursuant to Article VI, Section 5(b)(i)
and Article VII, Section 5(b)(i) of the GS Group Partnership Agreement.
10. KAA to be a Party to Plan; Amendments to the Plan. By its
execution of this Letter Agreement, KAA accepts the Plan and agrees to
become a party to the Plan. GS Group agrees to amend the Plan to (a) add
this Letter Agreement as an Exhibit to the Plan and provide that this
Letter Agreement may not be amended without the consent of KAA and (b)
provide that, notwithstanding the right of the general partner of GS Group
to amend the Plan in any respect prior to the consummation of the Plan, an
amendment to the Plan shall not be binding on KAA if such amendment (i)
effects a modification to the Plan that makes the Plan, as so modified,
inconsistent with Section 5 of Article VI and Section 5 of Article II of
the GS Group Partnership Agreement (which provide for terms upon which a
plan for the incorporation of the business of GS Group may be adopted
without the consent of KAA), without the consent of KAA or (ii) effects a
modification to Section 11 (Release and Indemnification Arrangements) or
Section 16 (Other - Release) that (A) materially and adversely affects
KAA's rights under the Plan and (B) is not of general applicability to all
parties who are subject to the Section modified. GS
Kamehameha Activities Association
March 15, 1999
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Group agrees to furnish KAA with notice and copies of any amendment to the
Plan as promptly as practicable after its adoption.
11. Termination. This Letter Agreement shall terminate upon the
mutual written consent of the parties to such termination. In addition,
this Letter Agreement shall be terminable by any party if (a) the IPO
shall not have previously been consummated by December 31, 1999 or (b) the
Plan is abandoned by the general partner of GS Group pursuant to its
terms.
12. Agreements Otherwise Unimpaired. Except as expressly provided in
this Letter Agreement and the Plan of Incorporation, the Subscription
Agreements, the Registration Rights Agreement and any other agreements
between or among the parties to this Letter Agreement
shall not be modified, impaired or affected.
13. Successors and Assigns. This Letter Agreement will be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto (including, with respect to
GS Group, GS Inc.).
14. Governing Law. This Letter Agreement is being entered into and
is intended to be performed in the State of New York and will be construed
and enforced in accordance with and governed by the laws of the State of
New York.
15. Counterparts. This Letter Agreement may be executed
simultaneously in several counterparts, each of which is an original, but
all of which together shall constitute one instrument.
Please indicate your agreement to the terms of this letter by
signing in the space provided below.
THE GOLDMAN SACHS GROUP, L.P.
By The Goldman Sachs Corporation
By: /s/ David Viniar
------------------------------
Accepted and Agreed to as
of the date first above
written:
KAMEHAMEHA ACTIVITIES ASSOCIATION
By: /s/ Wallace Chin
------------------------------
President
Annex B
Voting Agreement, dated as of ___________ __, 1999 (the "Voting
Agreement"), by and among [ ], on the one hand, and The Trustees of the Estate
of Bernice Pauahi Bishop, a private educational charitable trust organized under
the laws of the State of Hawaii (the "Bishop Estate") and Kamehameha Activities
Association, a Hawaii non-profit corporation ("Knight"), on the other hand.
WHEREAS, pursuant to the Subscription Agreement, dated as of April
24, 1992 (the "1992 Subscription Agreement"), among the Bishop Estate, Pauahi
Holdings Corporation, a Hawaii corporation ("Knight's Parent"), and Royal
Hawaiian Shopping Center, Inc., a Hawaii corporation ("RHSC"), on the one hand,
and The Goldman Sachs Group, L.P., a limited partnership organized under the
laws of Delaware (the "Partnership"), on the other, the Bishop Estate, Knight's
Parent and RHSC each delivered to the Partnership its irrevocable proxy, dated
April 24, 1992, in the form of Annexes 4(a) and 4(b) to the 1992 Subscription
Agreement (the "1992 Proxies");
WHEREAS, pursuant to the Subscription Agreement, dated as of
November 21, 1994 (the "1994 Subscription Agreement" and, collectively with the
1992 Subscription Agreement, as amended by the letter agreement, dated March 15,
1999 of which this Voting Agreement is Annex B, the "Subscription Agreements"),
among the Bishop Estate, Knight's Parent and RHSC, on the one hand, and the
Partnership, on the other, the Bishop Estate, Knight's Parent and RHSC each
delivered to the Partnership its irrevocable proxy, dated November 21, 1994, in
the form of Annexes 4(a) and 4(b) to the 1994 Subscription Agreement (the "1994
Proxies" and, collectively with the 1992 Proxies, the "Proxies");
WHEREAS, on July 15, 1998, RHSC was merged with and into Knight's
Parent and Knight's Parent assumed all of the rights and obligations of RHSC,
including RHSC's obligations under the Subscription Agreements, the Proxies and
the Memorandum of Agreement (defined below);
WHEREAS, on July 15, 1998, through a series of transfers and
mergers, Knight's Parent was merged with and into its successor and Knight,
pursuant to the Assumption Agreement, dated as of July 15, 1998, between Knight
and RHSC for the benefit of the Partnership, Knight assumed all of the rights
and obligations of RHSC and Knight's Parent under the Subscription Agreements,
the Proxies and the Memorandum of Agreement and agreed to be bound thereby;
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WHEREAS, pursuant to a Plan of Incorporation adopted pursuant to
Article I, Section 14 of the Partnership's Amended and Restated Memorandum of
Agreement, dated as of November 28, 1998 (the "Memorandum of Agreement"), The
Goldman Sachs Group, Inc., a Delaware corporation ("GS Inc."), will succeed to
the business of the Partnership and, in connection therewith and pursuant to the
terms of the Knight Partnership Provisions of (and as defined in) the Memorandum
of Agreement and the Subscription Agreements, GS Inc. will issue securities to
Knight;
WHEREAS, the Securities are subject to the Proxies and GS Inc. is
willing to terminate the Proxies in consideration of the agreements and
undertakings of the Bishop Estate and Knight contained herein;
[ ], the Bishop Estate and Knight hereby agree as follows:
1. The Partnership and GS Inc., as successor to the Partnership,
issuer of the securities and beneficiary of the Proxies, release each of
the Bishop Estate and Knight from its Proxy.
2. Each of the Bishop Estate and Knight agree, during the period of
limited duration specified below, to vote any and all securities of GS
Inc. or of any subsidiary of GS Inc. which have any voting rights, general
or special (herein collectively referred to as "Securities"), and which
the Bishop Estate or Knight may from time to time hold of record or
beneficially own, and agree to cause any direct or indirect subsidiary of
the Bishop Estate to vote any securities of GS Inc. or any subsidiary
thereof that may be acquired by such subsidiary of the Bishop Estate, at
any meeting of stockholders of GS Inc. or any such subsidiary (as the case
may be), and to provide written consent on behalf of the Bishop Estate,
Knight or any such subsidiary as to any matter as to which written consent
is sought from the owners of any Securities, in each case (x) with respect
to Securities of GS Inc., in the same manner as the majority of the shares
of common stock held by the managing directors of GS Inc. shall be voted
or consented in the vote of the stockholders of GS Inc. and (y) in the
case of Securities of a subsidiary of GS Inc., in the same manner as the
shares of common stock held by the immediate parent of such subsidiary
shall be voted or consented. Notwithstanding the foregoing, however, this
agreement shall not extend to the approval of any change or modification
in (i) the Registration Rights Agreement, the Subscription Agreements or
this Agreement or (ii) the material terms of any Securities held by the
Bishop Estate or Knight. For purposes of this Voting Agreement, the
exchange, conversion or other transfer of Securities or any other
securities by or on behalf of the Bishop Estate, Knight or any direct or
indirect subsidiary of the Bishop Estate or Knight for other
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securities of GS Inc. (or any successor or assign thereof) pursuant to and
in accordance with the Subscription Agreements and/or the Knight
Partnership Provisions shall not be considered a change in the material
terms of Securities held by the Bishop Estate or Knight.
3. For purposes of this Voting Agreement, "Securities" includes,
without limitation, any securities which have voting rights, general or
special of GS Inc. or any subsidiary thereof issued to Knight pursuant to
the Subscription Agreements or the "Knight Partnership Provisions"
referred to in the Subscription Agreements. The provisions of this
Agreement shall apply to Securities of any successor or assign of GS Inc.
(except an acquirer of the business of GS Inc. as referred to in Section
6(c) of the Knight Partnership Provisions) on the terms set forth therein.
4. This Voting Agreement shall terminate on the date of the final
disposition by the Bishop Estate and Knight of any and all Securities
referred to in Section 13(c) of the Subscription Agreements or the
cancellation thereof.
5. To the extent (if any) the Bishop Estate and Knight would retain
under law, regardless of the agreements in paragraph 2 hereof, any
residual rights inconsistent with paragraph 2 hereof, each of the Bishop
Estate and Knight, in consideration of the release by the Partnership and
GS Inc. of each of the Bishop Estate and Knight from its Proxy, and as
agreed with (and relied on by) the Partnership and GS Inc., hereby
specifically and expressly (i) waives such rights, (ii) agrees never to
exercise such rights and (iii) agrees never to claim, as a complaint or a
defense, or otherwise assert that this Voting Agreement is not valid or
enforceable.
6. The invalidity or unenforceability of any provisions of this
Voting Agreement shall not affect the validity or enforceability of any
other provision. To the extent (if any) any provision hereof is deemed
invalid or unenforceable by its scope but may be made valid or enforceable
by limitations thereon, the undersigned intend that this Voting Agreement
shall be valid and enforceable to the fullest extent permitted by law.
7. (a) THIS VOTING AGREEMENT SHALL BE GOVERNED BY AND WILL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE.
(b) Any dispute, controversy or claim arising out of or relating to
provisions of this Voting Agreement shall be finally settled by
arbitration in accordance with the Arbitration Rules of the United Nations
Commission
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on International Trade Law ("UNCITRAL") in effect on the date of this
Agreement. The number of arbitrators shall be three and the Administering
Authority shall be the American Arbitration Association. The tribunal
shall adopt rules of procedure supplementary to the rules of UNCITRAL as
it deems equitable under the circumstances. All direct costs of an
arbitration proceeding under this Section, including fees and expenses of
arbitration, shall be borne by the party incurring them. The place of
arbitration shall be The City of New York. The arbitration shall be
conducted in the English language. An award rendered by all or a majority
of the arbitrators shall be final and binding, and judgment may be entered
upon it in any court having jurisdiction. In no event shall this
subsection be construed as conferring upon any court authority or
jurisdiction to inquire into or review such award on its merits. The
parties agree to exclude any right of application or appeal to the
Federal, New York State and any other courts in connection with any
question of law or fact arising in the course of the arbitration or with
respect to any award made.
8. All notices and other communications hereunder shall be in
writing and shall be mailed by first class mail, postage prepaid,
addressed (a) if to the Bishop Estate or Knight, at Kamehameha Activities
Association, 567 South King Street, Suite 150, Honolulu, Hawaii 96813,
Attention: President, or at such other address as Knight shall furnish to
GS Inc. in writing, or (b) if to the Partnership or GS Inc., at 85 Broad
Street, New York, New York 10004, Attention: General Counsel, or at such
other address as GS Inc. shall furnish to the Bishop Estate or Knight in
writing.
9. This Voting Agreement will be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided, that this Voting Agreement shall not be
binding upon a transferee of Securities that is not affiliated with the
Bishop Estate or Knight who acquired such Securities in a disposition
which is permitted under the Subscription Agreements. This Voting
Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date above written.
THE TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP
By:_________________________________________________
By:_________________________________________________
By:_________________________________________________
KAMEHAMEHA ACTIVITIES ASSOCIATION
By:_________________________________________________
By:_________________________________________________
[ ]
By:_________________________________________________
[ ]
By:_________________________________________________
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