Exhibit B
VOTING AGREEMENT
Voting Agreement, dated as of April 30, 1999 (the "Voting Agreement"),
by and among The Xxxxxxx Xxxxx Group, Inc., a Delaware corporation ("GS Inc."),
on the one hand, and The Trustees of the Estate of Xxxxxxx Xxxxxx Xxxxxx, a
private educational charitable trust organized under the laws of the State of
Hawaii (the "Xxxxxx 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 Xxxxxx 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 Xxxxxxx Xxxxx Group, L.P., a limited partnership organized under the
laws of Delaware (the "Partnership"), on the other, the Xxxxxx 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 Xxxxxx Estate, Knight's Parent and RHSC, on the one hand, and the
Partnership, on the other, the Xxxxxx 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 Xxxxxx Estate and Knight contained herein;
GS Inc., the Xxxxxx 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
Xxxxxx Estate and Knight from its Proxy.
2. Each of the Xxxxxx 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
Xxxxxx 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 Xxxxxx Estate to vote any securities of GS Inc. or any subsidiary
thereof that may be acquired by such subsidiary of the Xxxxxx 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 Xxxxxx 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
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held by the Xxxxxx 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 Xxxxxx Estate, Knight or any direct or
indirect subsidiary of the Xxxxxx Estate or Knight for other 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 Xxxxxx 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 Xxxxxx 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 Xxxxxx 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 Xxxxxx Estate and
Knight, in consideration of the release by the Partnership and GS Inc. of
each of the Xxxxxx 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.
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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 the Xxxxxx Estate or Knight, at Kamehameha Activities Association, 000
Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx 00000, 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 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: General Counsel, or at such other address as GS Inc.
shall furnish to the Xxxxxx 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 Xxxxxx
Estate or Knight who acquired such Securities in a disposition which is
permitted under the Subscription Agreements. This Voting Agreement
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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 XXXXXXX
XXXXXX XXXXXX
By: /s/ Xxxxxxx Xxxx Hong Xxxx
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Xxxxxxx Xxxx Hong Xxxx
By: /s/ Xxxxxx Kofoad Xxxxxxx
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Xxxxxx Kofoad Xxxxxxx
By: /s/ Xxxxx Xxxxxxxx Xxxxxx
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Xxxxx Xxxxxxxx Xxxxxx
KAMEHAMEHA ACTIVITIES ASSOCIATION
By: /s/ Xxxxxxx X.X. Chin
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Xxxxxxx X.X. Xxxx
THE XXXXXXX SACHS GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Executive Vice President
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