EXHIBIT 10.37
VOTING AGREEMENT
Voting Agreement, dated as of April 30, 1999 (the "Voting
Agreement"), by and among The Goldman Sachs Group, Inc., a Delaware corporation
("GS Inc."), 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;
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"), 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;
GS Inc., 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
-2-
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
-3-
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.
-4-
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: /s/ Richard Sung Hong Wong
------------------------------------
By: /s/ Oswald Kofoad Stender
-----------------------------------
By: /s/ Henry Haalilio Peters
-----------------------------------
KAMEHAMEHA ACTIVITIES ASSOCIATION
By: /s/ Wallace G.K. Chin
-----------------------------------
Wallace G.K. Chin
President
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Robert J. Katz
-----------------------------------
Robert J. Katz
Executive Vice President
-5-