EXHIBIT 10.36
[Execution Copy]
April 30, 1999
Mr. Akira Kondoh
Managing Director
The Sumitomo Bank, Ltd.
3-2, Marunouchi 1-chome
Chiyoda-ku, Tokyo 100-8201
Mr. Ryuzo Kodama
Director
Head of Americas Division
The Sumitomo Bank, Limited
277 Park Avenue
New York, NY 10172
Dear Mr. Kondoh and Mr. Kodama:
This letter (this "Letter Agreement") sets forth the agreement among
The Sumitomo Bank, Limited ("Sumitomo"), Sumitomo Bank Capital Markets, Inc.
("SBCM"), The Goldman Sachs Group, L.P. ("GS Group"), The Goldman Sachs Group,
Inc. ("GS Inc.") and Goldman, Sachs & Co. ("GS&Co.") with respect to certain
matters, and amends and supplements the Letter Agreement among Sumitomo, SBCM,
GS Group and GS&Co. dated March 15, 1999 (the "SBCM Letter Agreement").
Reference is made to the Memorandum of Agreement of GS Group, as
amended and restated as of November 28, 1998 (the "GS Group Partnership
Agreement") and to (i) the Amended and Restated Subscription Agreement, dated as
of March 28, 1989 (the "Subscription Agreement"), among Sumitomo, SBCM (together
with Sumitomo, the "Sumitomo Group"), GS&Co. and GS Group and (ii) the Amended
and Restated Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of March 28, 1989, among Sumitomo, SBCM, GS&Co. and GS
Group. Capitalized terms used herein, but not otherwise defined herein, shall
have the meanings ascribed thereto in the SBCM Letter Agreement. This Letter
Agreement shall be a modification of and an amendment to the SBCM Letter
Agreement, the Subscription Agreement and the Registration Rights Agreement to
the extent set forth herein.
The parties hereby agree as follows:
The Sumitomo Bank, Ltd.
April 30, 1999
Page 2
1. Common Stock to be Sold by SBCM. In the SBCM Letter
Agreement, SBCM agreed that, if requested by GS Inc., it would sell
9,000,000 shares of Common Stock in a secondary offering as a part of
the IPO. The parties hereto agree that the indemnification and
contribution provisions contained in the Registration Rights Agreement
shall be applicable to any sale of such shares of Common Stock in the
secondary offering as part of the IPO on the same terms and conditions
as are applicable to piggy-back registrations pursuant to Section 5(b)
of the Registration Rights Agreement.
2. Cooperation in Respect of Filings under Sections 13(d) and
16(a) of the Exchange Act. Sumitomo, SBCM and GS Inc. each hereby agree
to furnish information to each other and to Kamehameha Activities
Association ("KAA") to permit each of SBCM, KAA and the parties to the
Shareholders' Agreement to be entered into among the PLPs in connection
with the Plan to satisfy their obligations to file statements
containing the information required by Schedule 13D under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in
accordance with Rule 13d-1 under the Exchange Act, and to file
statements of beneficial ownership under Section 16(a) of the Exchange
Act. GS Inc. hereby agrees to obtain similar undertakings from KAA for
the benefit of Sumitomo, SBCM, GS Inc. and the parties to the foregoing
Shareholders' Agreement.
3. Legends on Certificates. Section 10(c) of the Subscription
Agreement sets forth the legend that certificates representing Common
Stock shall bear and provides that Sumitomo and GS Group may agree to
another form of legend. Sumitomo and GS Group hereby agree that shares
of Common Stock issued in connection with the consummation of the Plan
(other than, if requested by GS Inc., the 9,000,000 shares of Common
Stock to be sold in the secondary offering as part of the IPO) and
thereafter, unless otherwise agreed by GS Inc. and SBCM, shall bear the
following legends:
(i) Legend for Nonvoting Common Stock:
THE SHARES OF NONVOTING COMMON STOCK REPRESENTED BY THIS
CERTIFICATE (THE "SHARES") ARE NOT TRANSFERABLE AND ARE
SUBJECT TO THE PROVISIONS OF A LETTER AGREEMENT, DATED AS OF
MARCH 15, 1999 (AS
The Sumitomo Bank, Ltd.
April 30, 1999
Page 3
AMENDED, THE "LETTER AGREEMENT"), AMONG THE SUMITOMO BANK,
LIMITED ("SUMITOMO"), SUMITOMO BANK CAPITAL MARKETS, INC.
("SBCM"), GOLDMAN, SACHS & CO. AND THE GOLDMAN SACHS GROUP,
INC. (AS SUCCESSOR TO THE GOLDMAN SACHS GROUP, L.P. ("GSLP"))
(THE "CORPORATION") AND AN AMENDED AND RESTATED SUBSCRIPTION
AGREEMENT, DATED AS OF MARCH 28, 1989, AMONG SUMITOMO, SBCM,
GOLDMAN, SACHS & CO. AND THE CORPORATION (AS SUCCESSOR TO
GSLP), COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICE OF THE CORPORATION. THE SHARES HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933 OR OTHER SECURITIES
LAWS. THE SHARES MAY BE REGISTERED ONLY IN THE NAME OF SBCM OR
OF THE CHASE MANHATTAN BANK OR ITS NOMINEE AS CUSTODIAN FOR
SBCM.
ANY HEDGING TRANSACTIONS UNDERTAKEN IN RELATION TO THE SHARES
MUST COMPLY WITH THE HEDGING RESTRICTIONS SET FORTH IN THE
LETTER AGREEMENT.
(ii) Legend for Common Stock:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
(THE "SHARES") HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR OTHER
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, EXCHANGED,
TRANSFERRED, ASSIGNED, PLEDGED, PARTICIPATED, HYPOTHECATED OR
OTHERWISE DISPOSED OF (EACH, A "TRANSFER") EXCEPT PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND,
IF APPLICABLE, SUCH OTHER SECURITIES LAWS AND FOLLOWING
RECEIPT BY THE GOLDMAN SACHS GROUP, INC. (THE "CORPORATION")
OF A LEGAL OPINION IN FORM AND SUBSTANCE SATISFACTORY TO IT
THAT SUCH TRANSFER IS PERMITTED.
THE SHARES ARE SUBJECT TO THE PROVISIONS OF A LETTER
AGREEMENT, DATED AS OF MARCH 15, 1999 (AS AMENDED, THE "LETTER
AGREEMENT"), AMONG THE SUMITOMO BANK,
The Sumitomo Bank, Ltd.
April 30, 1999
Page 4
LIMITED ("SUMITOMO"), SUMITOMO BANK CAPITAL MARKETS, INC.
("SBCM") AND THE CORPORATION (AS SUCCESSOR TO THE GOLDMAN
SACHS GROUP, L.P. ("GSLP")) AND AN AMENDED AND RESTATED
SUBSCRIPTION AGREEMENT, DATED AS OF MARCH 28, 1989, AMONG
SUMITOMO, SBCM, GOLDMAN, SACHS & CO. AND THE CORPORATION (AS
SUCCESSOR TO GSLP), COPIES OF WHICH ARE ON FILE AT THE
PRINCIPAL EXECUTIVE OFFICE OF THE CORPORATION AND WHICH, AMONG
OTHER MATTERS, PLACE RESTRICTIONS ON THE DISPOSITION OF THE
SHARES. THE SHARES MAY BE SOLD, EXCHANGED, TRANSFERRED,
ASSIGNED, PLEDGED, PARTICIPATED, HYPOTHECATED OR OTHERWISE
DISPOSED OF ONLY IN ACCORDANCE THEREWITH. THE SHARES MAY BE
REGISTERED ONLY IN THE NAME OF SBCM OR OF THE CHASE MANHATTAN
BANK OR ITS NOMINEE AS CUSTODIAN FOR SBCM.
ANY HEDGING TRANSACTIONS UNDERTAKEN IN RELATION TO THE SHARES
MUST COMPLY WITH THE HEDGING RESTRICTIONS SET FORTH IN THE
LETTER AGREEMENT.
THE SHARES MAY NOT BE VOTED IN A MANNER INCONSISTENT WITH THE
VOTING AGREEMENT, DATED AS OF APRIL 30, 1999, AMONG SUMITOMO,
SBCM AND THE CORPORATION.
4. Agreements Otherwise Unimpaired. Except as expressly
provided in this Letter Agreement and the Plan, the Subscription
Agreement, the Registration Rights Agreement, the SBCM Letter Agreement
and any other agreements between or among the parties to this Letter
Agreement shall not be modified, impaired or affected by the execution
and delivery of this Letter Agreement.
5. 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.).
The Sumitomo Bank, Ltd.
April 30, 1999
Page 5
6. 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.
7. 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.
The Sumitomo Bank, Ltd.
April 30, 1999
Page 6
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/ Robert J. Katz
------------------------
Robert J. Katz
Executive Vice President
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Robert J. Katz
------------------------
Robert J. Katz
Executive Vice President
GOLDMAN SACHS & CO.
By The Goldman, Sachs & Co. L.L.C.
By: /s/ Robert J. Katz
------------------------
Robert J. Katz
Executive Vice President
Accepted and Agreed to as
of the date first above
written:
THE SUMITOMO BANK, LIMITED
By: /s/ Ryuzo Kodama
------------------------
Ryuzo Kodama
Director and Head of the Americas Division
SUMITOMO BANK CAPITAL MARKETS, INC.
By: /s/ Natsuo Okada
------------------------
Natsuo Okada
President