1
Exhibit 10.33
March 15, 1999
Mr. Akira Kondoh
Managing Director
The Sumitomo Bank, Ltd.
0-0, Xxxxxxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx 100-8201
Xx. Xxxxx Xxxxxx
Director
Head of Americas Division
The Sumitomo Bank, Limited
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Mr. Kondoh and Xx. Xxxxxx:
This letter (this "Letter Agreement") sets forth the agreement among The
Sumitomo Bank, Limited ("Sumitomo"), Sumitomo Bank Capital Markets, Inc.
("SBCM") and The Xxxxxxx 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
Amended and Restated Subscription Agreement, dated as of March 28, 1989 (the
"Subscription Agreement"), among Sumitomo, SBCM (together with Sumitomo, the
"Sumitomo Group"), Xxxxxxx, Xxxxx & Co. ("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 Subscription Agreement or the GS Group
Partnership Agreement, as applicable. This Letter Agreement shall be a
modification of and an amendment to the Subscription Agreement and the
Registration Rights Agreement to the extent set forth herein.
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March 15, 1999
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The parties hereby agree as follows:
1. Securities to be Issued to SBCM. SBCM hereby elects pursuant to
Paragraph 5 of Article II of the GS Group Partnership Agreement to receive
solely common stock of The Xxxxxxx Sachs Group, Inc. ("GS Inc." or the
"Company") in connection with the Plan. The GS Inc. common stock to be
issued to SBCM pursuant to Paragraph 5 of Article II of the GS Group
Partnership Agreement will be comprised of (a) Common Stock, $.01 par
value, identical to, and the same class as, the common stock to be issued
and sold by GS Inc. as a primary issuance of not less than $1 billion in
the initial public offering (the "IPO") of GS Inc. pursuant to the Form
S-1 Registration Statement of GS Inc. to be filed with the Securities and
Exchange Commission ("Common Stock"), and (b) Nonvoting Common Stock of GS
Inc. which is convertible into Common Stock on a share-for-share basis
pursuant to the terms and subject to the conditions of the conversion
provisions set forth in Annex A hereto and which is identical in all
respects (other than with respect to voting rights) to the Common Stock
(e.g., each share of Nonvoting Common Stock shall be entitled to receive
the same consideration (except for differences in voting rights of
securities) in any merger or other business combination as each share of
Common Stock) ("Nonvoting Common Stock"). The number of shares of Common
Stock initially issued to SBCM will be limited to a number of shares of
Common Stock such that SBCM shall not hold more than 4.9% of the
outstanding shares of Common Stock on the date of the closing of the IPO
(the "IPO Date"), after giving effect to any disposition of shares of
Common Stock by SBCM pursuant to Section 3 hereof. The remaining
securities to which SBCM is entitled will be issued to SBCM in the form of
Nonvoting Common Stock.
2. Adjustment to Part E Actual Capital; Other Distributions. Upon
calculation of any adjustment to SBCM's Part E Interest as of November 28,
1998 pursuant to Article II, Section 3(c) of the GS Group Partnership
Agreement, the parties agree that any adjustment pursuant to Section
3(c)(iii) or (iv) shall be made by a distribution of cash to SBCM (if
clause (iii) is applicable) or by SBCM contributing additional capital to
GS Group (if clause (iv) is applicable), in each case in accordance with
the GS Group Partnership Agreement, and that SBCM's Actual Share will not
be adjusted.
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March 15, 1999
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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
SBCM shall be permitted, in accordance with Paragraph 14 of the Article I
of the GS Group Partnership Agreement, to make a capital withdrawal, in
the amount of $35,483,639, which, to the extent that SBCM is required to
contribute additional capital to GS Group pursuant to the first paragraph
of this Section 2, shall be netted against such capital contribution by
SBCM.
3. Common Stock to be Sold by SBCM. SBCM agrees that, if requested
by GS Inc., SBCM shall sell 9,000,000 shares of Common Stock in a
secondary offering as a part of the IPO. SBCM agrees (a) that it shall use
its best reasonable efforts to persuade the Board of Governors of the
Federal Reserve System (the "FRB") not to object with respect to SBCM's
receipt and sale of shares of Common Stock to be sold as part of the IPO
pursuant to this Section 3, (b) to sell such shares at the initial public
offering price established by GS Inc. and the underwriters in the IPO, and
(c) to cooperate fully in the registration and offering of such shares,
including, without limitation, (1) furnishing any information relating to
the Sumitomo Group 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 5(b) of the Registration Rights Agreement. GS Inc.
will not request SBCM to sell shares of Common Stock pursuant to this
Section 3 unless SBCM will hold no more than 4.9 percent of the Common
Stock on the close of business on the IPO Date. If the FRB objects to SBCM
selling Common Stock in the secondary offering, SBCM will not be obligated
to acquire any Common Stock that would result in SBCM holding in excess of
4.9% of the Common Stock at any time and SBCM will receive all shares to
which it is entitled, in addition to 4.9% of the Common Stock, in the form
of Nonvoting Common Stock; provided that SBCM shall neither sell any of
the Nonvoting Common Stock pursuant to this Section 3 nor convert any of
the Nonvoting Common Stock and sell the Common Stock received in respect
thereof.
4. 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 5(a) hereof, and in addition to
the transfer restrictions set forth in the Subscription Agreement, as
amended,
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March 15, 1999
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Sumitomo and SBCM each agrees that it will comply with the hedging
restrictions of GS Inc. applicable to its managing directors set forth on
Annex B hereto; provided, that (i) such restrictions shall not apply to
the Sumitomo Group's asset management activities for unaffiliated parties
and (ii) if GS Inc. relaxes such hedging restrictions, such relaxation
shall apply to the Sumitomo Group.
5. Dispositions of Securities. (a) The provisions of the fourth
sentence of Section 10(d)(ii) of the Subscription Agreement shall be
replaced with the following:
"In addition to the other restrictions on transfer included in this
Agreement, Sumitomo and SBCM each agree as follows:
(1) Other than as provided in Section 3 of the letter
agreement (the "Letter Agreement"), dated as of March 15, 1999,
among Sumitomo, SBCM, GS&Co. and GS Group and Section 10(d)(iv)
hereof, no securities of the Company may be disposed of by SBCM,
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, SBCM 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 and Nonvoting Common Stock (as
defined in the Letter Agreement) that SBCM received under Section 1
of the Letter Agreement (the "SBCM Original Block"); provided,
however, that SBCM, with the consent of the Company, which shall not
be unreasonably withheld, may subsequent to the first anniversary of
the IPO Date and prior 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
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March 15, 1999
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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 SBCM Original Block less
(b) the number of shares of Common Stock disposed of pursuant to
Section 10(d)(ii)(4) hereof in such 12-month period.
(3) Subsequent to the third anniversary of the IPO Date, SBCM
may dispose of, whether pursuant to the exercise of demand rights or
piggy-back rights, in each 12-month period following such
anniversary Common Stock constituting in the aggregate up to 33 1/3%
of the SBCM 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 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, SBCM 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 SBCM in such one-year period to such higher percentage;
provided, that, the restrictions on transfer set forth in this
Section 10(d)(ii) shall no longer be applicable following a Change
of Control (as defined below) and any such disposition may
thereafter be made by SBCM without regard to any such restrictions.
For purposes of this Section 10(d)(ii), "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
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
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March 15, 1999
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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) Notwithstanding the foregoing restrictions on transferability of
securities of GS Inc. and delivery of Disposition Notices, SBCM shall have
the right at any time to make a request of GS Inc. that SBCM 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 SBCM
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The Sumitomo Bank, Ltd.
March 15, 1999
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acknowledges and agrees that whether or not to grant any such request
shall be at the sole discretion of GS Inc.
6. 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 SBCM 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 Agreement
or the Registration Rights Agreement to the contrary, SBCM may tender its
shares of Common Stock and Nonvoting Common Stock (which shall be
converted into 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 or
Nonvoting Common Stock purchased from SBCM pursuant to this Section 6
shall reduce the number of shares that may be disposed of by SBCM in the
relevant 12-month period pursuant to Section 5 above.
7. Voting Agreement. Sumitomo and SBCM agree that, at the request of
GS Inc., they will execute and deliver prior to the IPO Date the Voting
Agreement attached hereto as Annex C. The parties hereby agree that the
proxies that have been previously granted by Sumitomo and SBCM pursuant to
the Subscription Agreement 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 C.
8. Representations and Warranties. Sumitomo and SBCM hereby make,
and shall be deemed to have remade on the IPO Date, each of the
representations and warranties set forth in Annex D attached hereto and
agree that counsel to GS Group may rely thereon in rendering an opinion to
GS Group as to tax matters.
9. 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, SBCM 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
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March 15, 1999
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Article II, 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 SBCM's Part E Actual Capital.
10. Stock Options. Each of the GS Group and GS Inc. represents and
warrants to SBCM 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 SBCM pursuant to Article II, Section 5(b)(i)
of the GS Group Partnership Agreement.
11. Admission of Partners and Equity Investors. Section
9(d) of the Subscription Agreement is hereby deleted in its
entirety.
12. SBCM to be a Party to Plan; Amendments to the Plan. By its
execution of this Letter Agreement, SBCM 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 SBCM 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 SBCM if such amendment (i)
effects a modification to the Plan that makes the Plan, as so modified,
inconsistent with Section 5 of Article II of the GS Group Partnership
Agreement (which provides for terms upon which a plan for the
incorporation of the business of GS Group may be adopted without the
consent of SBCM), without obtaining the consent of SBCM or (ii) effects a
modification to Section 11 (Release and Indemnification Arrangements) or
Section 16 (Other - Release) that (A) materially and adversely effects
SBCM's rights under the Plan and (B) is not of general applicability to
all parties who are subject to the Section modified. GS Group agrees to
furnish SBCM with notice and copies of any amendment to the Plan as
promptly as practicable after its adoption.
13. 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.
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March 15, 1999
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14. Agreements Otherwise Unimpaired. Except as expressly provided in
this Letter Agreement and the Plan of Incorporation, the Subscription
Agreement, the Registration Rights Agreement and any other agreements
between or among the parties to this Letter Agreement shall not be
modified, impaired or affected.
15. 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.).
16. 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.
17. 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 XXXXXXX XXXXX GROUP, L.P.
By The Xxxxxxx Sachs Corporation
By: /s/ Xxxxx Xxxxxx
----------------------------------
XXXXXXX SACHS & CO.
By Xxxxxxx, Xxxxx & Co. LLC
By: /s/ Xxxxx Xxxxxx
-----------------------------------
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Accepted and Agreed to as
of the date first above
written:
THE SUMITOMO BANK, LIMITED
By: /s/ Ryuzo Kodana
------------------------------------------
Director and Head of the Americas Division
SUMITOMO BANK CAPITAL MARKETS, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------------
President
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Annex C
Voting Agreement, dated as of ___________ __, 1999 (the "Voting
Agreement"), by and among [ ], on the one hand, and The Sumitomo Bank, Limited,
a corporation organized under the laws of Japan ("Sumitomo") and Sumitomo Bank
Capital Markets, Inc., a Delaware corporation and a wholly-owned subsidiary of
Sumitomo ("SBCM"), on the other hand.
WHEREAS, pursuant to the Amended and Restated Subscription
Agreement, dated as of March 28, 1989 (as amended by the letter agreement, dated
March 15, 1999 of which this Voting Agreement is Annex C, the "Subscription
Agreement"), among Sumitomo and SBCM, on the one hand, and Xxxxxxx, Sachs & Co.,
a New York limited partnership ("GSNY"), and The Xxxxxxx Xxxxx Group, L.P., a
Delaware limited partnership (the "Partnership"), on the other, Sumitomo and
SBCM each delivered to the Partnership its irrevocable proxy, dated March 28,
1989, in the form of Annexes 5(a) and 5(b) to the Subscription Agreement (the
"Proxies");
WHEREAS, pursuant to a Plan of Incorporation adopted pursuant to
Article I, Section 14 of the Amended and Restated Memorandum of Agreement, dated
as of November 28, 1998 (the "Memorandum of Agreement") of the Partnership, The
Xxxxxxx 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 Bank Partnership Provisions of (and as defined in) the Memorandum
of Agreement and the Subscription Agreement, GS Inc. will issue securities to
SBCM;
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 Sumitomo and SBCM contained herein;
[ ], Sumitomo and SBCM hereby agree as follows:
1. The Partnership, GSNY and GS Inc., as successor to the
Partnership, issuer of the securities and beneficiary of the Proxies,
release each of Sumitomo and SBCM from its Proxy.
2. Each of Sumitomo and SBCM 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 Sumitomo or
SBCM may from time to time hold of record or beneficially own, and agree
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to cause any direct or indirect subsidiary of Sumitomo to vote any
securities of GS Inc. or any subsidiary thereof that may be acquired by
such subsidiary of Sumitomo, 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 Sumitomo, SBCM 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 Agreement or this Agreement or (ii) the material terms of any
Securities held by Sumitomo and SBCM. For purposes of this Voting
Agreement, the exchange, conversion or other transfer of Securities or any
other securities by or on behalf of Sumitomo, SBCM or any direct or
indirect subsidiary of Sumitomo for other securities of GS Inc. (or any
successor or assign thereof) pursuant to and in accordance with the
Subscription Agreement and/or the Bank Partnership Provisions (including,
but not limited to, pursuant to Schedules I, II and III to the
Subscription Agreement or Section 5 of the Bank Partnership Provisions)
shall not be considered a change in the material terms of Securities held
by Sumitomo or SBCM.
3. For purposes of this Voting Agreement, "Securities" includes,
without limitation, (i) the Public Preferred Stock defined in Schedule III
to the Subscription Agreement and the Public Common Stock defined in
Schedule II to the Subscription Agreement and (ii) any other securities
(which have voting rights, general or special) of GS Inc. or any
subsidiary thereof issued to SBCM pursuant to the Subscription Agreement
or the "Bank Partnership Provisions" referred to in the Subscription
Agreement. 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 Bank Partnership Provisions)
on the terms set forth therein.
4. This Voting Agreement shall terminate on the date of the final
disposition by Sumitomo and SBCM of any and all Securities referred to in
Section 13(b) of the Subscription Agreement or the cancellation thereof.
5. To the extent (if any) Sumitomo and SBCM would retain under law,
regardless of the agreements in paragraph 2 hereof, any residual
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rights inconsistent with paragraph 2 hereof, each of Sumitomo and SBCM, in
consideration of the release by the Partnership, GSNY and GS Inc. of each
of Sumitomo and SBCM from its Proxy, and as agreed with (and relied on by)
the Partnership, GSNY 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 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 Sumitomo or SBCM, at Sumitomo Bank Capital Markets,
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President, or
at such other address as SBCM shall furnish to GS Inc. in writing, or (b)
if to
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the Partnership, GSNY or GS Inc., at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Counsel, or at such other address as GS Inc.
shall furnish to Sumitomo or SBCM 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
Sumitomo who acquired such Securities in a disposition which is permitted
under the Subscription Agreement. 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 SUMITOMO BANK, LIMITED
By:_________________________________________________
SUMITOMO BANK CAPITAL MARKETS, INC.
By:_________________________________________________
[ ]
By:_________________________________________________
[ ]
By:_________________________________________________
[ ]
By:_________________________________________________
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