Exhibit 15
CONFORMED COPY
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AGREEMENT AND PLAN OF MERGER
Dated as of October 17, 0000
Xxxxx
XXX,
XXX MERGER CORP.
And
AXA FINANCIAL, INC.
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TABLE OF CONTENTS
PAGE
ARTICLE I
THE OFFER AND THE MERGER
SECTION 1.01. The Offer.....................................................2
SECTION 1.02. Company Actions...............................................6
SECTION 1.03. The Merger....................................................7
SECTION 1.04. Closing.......................................................7
SECTION 1.05. Effective Time................................................7
SECTION 1.06. Effect........................................................8
SECTION 1.07. Certificate of Incorporation and By-laws......................8
SECTION 1.08. Directors.....................................................8
SECTION 1.09. Officers......................................................8
ARTICLE II
EFFECT ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
SECTION 2.01. Effect on Capital Stock...................................... 8
SECTION 2.02. Exchange of Certificates.....................................11
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.01. Organization, Standing and Power.............................16
SECTION 3.02. Capital Structure............................................17
SECTION 3.03. Authority; Execution and Delivery;
Enforceability...............................18
SECTION 3.04. No Conflicts; Consents.......................................19
SECTION 3.05. SEC Documents................................................20
SECTION 3.06. Information Supplied.........................................21
SECTION 3.07. Opinion of Financial Advisor.................................21
SECTION 3.08. Brokers......................................................22
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
SECTION 4.01. Organization, Standing and Power.............................22
SECTION 4.02. Capital Structure............................................22
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SECTION 4.03. Authority; Execution and Delivery;
Enforceability...............................23
SECTION 4.04. No Conflicts; Consents.......................................23
SECTION 4.05. SEC Documents................................................24
SECTION 4.06. Information Supplied.........................................25
SECTION 4.07. Financing....................................................25
SECTION 4.08. Brokers......................................................25
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 5.01. Conduct of Business..........................................26
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Preparation of Form F-4 and Proxy
Statement/Prospectus or Information
Statement/Prospectus; Stockholders
Meeting/Written Consent......................28
SECTION 6.02. Reasonable Best Efforts; Notification........................30
SECTION 6.03. Stock Options; Directors Stock...............................31
SECTION 6.04. Indemnification..............................................34
SECTION 6.05. Fees and Expenses............................................36
SECTION 6.06. Public Announcements.........................................36
SECTION 6.07. Transfer Taxes...............................................37
SECTION 6.08. Stockholder Litigation.......................................37
SECTION 6.09. Affiliates...................................................37
SECTION 6.10. Listing......................................................38
SECTION 6.11. Merger Sub Compliance........................................38
SECTION 6.12. Treatment of DLJ.............................................38
SECTION 6.13. Employee Benefits............................................38
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01. Conditions to Each Party's Obligation to
Effect the Merger..............................39
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination..................................................40
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SECTION 8.02. Effect of Termination........................................42
SECTION 8.03. Amendment....................................................42
SECTION 8.04. Extension; Waiver............................................42
SECTION 8.05. Procedure for Termination, Amendment,
Extension or Waiver..........................42
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Nonsurvival of Representations and
Warranties...................................43
SECTION 9.02. Notices......................................................43
SECTION 9.03. Definitions..................................................44
SECTION 9.04. Interpretation...............................................45
SECTION 9.05. Severability.................................................45
SECTION 9.06. Counterparts.................................................46
SECTION 9.07. Entire Agreement; No Third-Party
Beneficiaries................................46
SECTION 9.08. Governing Law................................................46
SECTION 9.09. Assignment...................................................46
SECTION 9.10. Jurisdiction.................................................46
Exhibit A - Conditions of the Offer
Exhibit B - Form of Company Affiliate Letter
Exhibit C - Voting Agreement
AGREEMENT AND PLAN OF MERGER dated as of October
17, 2000 among AXA, a societe anonyme organized under
the laws of The Republic of France ("PARENT"), AXA
MERGER CORP., a Delaware corporation and wholly owned
subsidiary of Parent ("MERGER SUB"), and AXA
FINANCIAL, INC., a Delaware corporation (the
"COMPANY").
WHEREAS Parent directly and indirectly through subsidiaries
owns, through a voting trust (the "VOTING TRUST") established pursuant to a
Voting Trust Agreement dated as of May 12, 1992, by and among Parent and the
voting trustees named therein, as amended by the First Amendment thereto dated
as of January 22, 1997 (as so amended, the "VOTING TRUST AGREEMENT"),
approximately 60.3% of the outstanding Common Stock, par value $.01 per share,
of the Company (the "COMPANY COMMON STOCK");
WHEREAS Parent and Merger Sub propose to make an offer (as it
may be amended from time to time as permitted under this Agreement, the "OFFER")
to exchange (A) all outstanding shares of Company Common Stock, other than (1)
shares owned by Parent and its subsidiaries held in the Voting Trust (such
shares, excluding any shares acquired pursuant to the Offer and deposited in the
Voting Trust, the "AFFILIATE SHARES" and the holders thereof, the "AFFILIATE
SHAREHOLDERS") and (2) shares held in treasury by the Company, for (B)
consideration per share of Company Common Stock equal to the Per Share Merger
Consideration (as defined in Section 2.01(c)), on the terms and subject to the
conditions set forth in this Agreement;
WHEREAS the Board of Directors of the Company (the "COMPANY
BOARD"), based on the unanimous recommendation of a special committee of
independent directors of the Company (the "SPECIAL COMMITTEE"), has (i) approved
this Agreement, the Offer, the merger of Merger Sub with and into the Company,
with the Company as the surviving corporation (the "MERGER"), and the other
transactions contemplated hereby, (ii) determined that the terms of the Offer
and the Merger are fair to and in the best interests of the Company and the
holders of Company Common Stock (other than the Affiliate Shareholders), (iii)
declared the advisability of this Agreement and (iv) recommended acceptance of
the Offer and, to the extent applicable, adoption of this Agreement by such
holders of Company Common Stock, subject to the terms and conditions set forth
herein;
WHEREAS a majority of the voting trustees under the Voting
Trust have delivered to the Company a voting
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agreement signed by each of them (the "VOTING AGREEMENT"), in the form attached
hereto as EXHIBIT C, with respect to the voting of the shares of Company Common
Stock held in the Voting Trust in favor of the adoption of this Agreement, if
applicable, which Voting Agreement may not be amended without the approval of
the Special Committee;
WHEREAS the Board of Directors of Merger Sub has approved this
Agreement and declared its advisability, and simultaneous with the execution and
delivery hereof Parent, as the sole stockholder of Merger Sub, has adopted this
Agreement; and
WHEREAS Parent, Merger Sub and the Company desire to make
certain representations, warranties, covenants and agreements in connection with
the Offer and the Merger and also to prescribe various conditions to the Offer
and the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE OFFER AND THE MERGER
SECTION 1.01. THE OFFER. (a) Subject to the conditions set
forth in EXHIBIT A, as promptly as practicable after the date of this Agreement,
Parent and Merger Sub shall commence the Offer within the meaning of the
applicable rules and regulations of the Securities and Exchange Commission (the
"SEC"). The obligations of Parent and Merger Sub to accept for payment, and
deliver any payment for, any shares of Company Common Stock tendered pursuant to
the Offer are subject to no conditions other than the conditions set forth in
EXHIBIT A. The initial expiration date of the Offer shall be the 20th business
day following the commencement of the Offer (determined using Rule 14d-1(g)(3)
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")).
Parent and Merger Sub expressly reserve the right to waive any condition to the
Offer or modify the terms of the Offer, except that, without the consent of the
Company (expressed in a resolution adopted by both the Special Committee and the
Company Board), Parent and Merger Sub shall not (i) reduce the amount of
consideration per share of Company Common Stock or change the form of
consideration to be paid pursuant to the Offer or reduce the percentage of
shares of Company Common Stock offered to be acquired in the Offer, (ii) add to
the conditions set forth in EXHIBIT A or modify any condition
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set forth in EXHIBIT A in any manner adverse to the holders of Company Common
Stock (other than the Affiliate Shareholders) or (iii) otherwise amend the Offer
in any manner adverse to the holders of Company Common Stock (other than the
Affiliate Shareholders). The Company agrees that no Company Common Stock held by
the Company (including shares of Company Common Stock held in treasury by the
Company) will be tendered pursuant to the Offer. Notwithstanding the foregoing,
Parent and Merger Sub may, without the consent of the Company, (i) extend the
Offer, if at the scheduled expiration date of the Offer any of the conditions to
Parent's and Merger Sub's obligation to purchase shares of Company Common Stock
are not satisfied, until such time as such conditions are satisfied or
irrevocably waived, (ii) extend the Offer for any period required by any rule,
regulation, interpretation or position of the SEC or the staff thereof
applicable to the Offer and (iii) extend the Offer for any reason for a period
of not more than 5 business days beyond the latest expiration date that would
otherwise be permitted under clause (i) or (ii) of this sentence but in no event
ending later than the date set forth in Section 8.01(b)(i) and only so long as
Parent and Merger Sub shall have waived each of the conditions set forth in
EXHIBIT A. In the event that Parent and Merger Sub are unable to consummate the
Offer on the initial scheduled expiration date due to the failure of the
conditions set forth in EXHIBIT A to be satisfied or waived, except to the
extent that such conditions are incapable of being satisfied, Parent and Merger
Sub shall not terminate the Offer and shall extend the Offer (for no more than
10 business days without the consent of the Special Committee) and set a
subsequent scheduled expiration date, and shall continue to so extend the Offer
under such circumstances and set subsequent scheduled expiration dates until the
earlier of (x) the date that such conditions are satisfied or waived and (y) the
date set forth in Section 8.01(b)(i). In addition, notwithstanding the
foregoing, Parent and Merger Sub shall provide a "subsequent offering period",
in accordance with Rule 14d-11 under the Exchange Act, of a number of days
ending on the earliest to occur of (i) 20 business days following commencement
of such subsequent offering period, (ii) the business day prior to the Closing
Date (as defined in Section 1.04) and (iii) December 31, 2000, if extending the
subsequent offering period beyond December 31, 2000 would reasonably be expected
to adversely affect Parent. On the terms and subject to the conditions of the
Offer and this Agreement, Parent and Merger Sub shall (i) if the conditions set
forth in EXHIBIT A have been satisfied or waived by Parent and Merger Sub and
the Offer has expired, accept for payment all shares of Company Common Stock
validly tendered and not
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withdrawn pursuant to the Offer, (ii) deliver payment for all shares of Company
Common Stock validly tendered and not withdrawn pursuant to the Offer that
Parent and Merger Sub become obligated to purchase upon expiration of the Offer
or initial period of the Offer, as applicable, as soon as practicable after such
expiration and (iii) deliver payment for any shares of Company Common Stock
validly tendered pursuant to the Offer during the subsequent offer period that
Parent and Merger Sub are obligated to purchase promptly upon such tender. The
parties agree and acknowledge that neither the acceptance for payment nor
payment for any shares of Company Common Stock pursuant to the Offer will affect
the Company's obligation to pay any dividends on such shares with a record date
prior to such acceptance for payment or payment that may have been declared by
the Company in accordance with the terms of this Agreement or prior to the date
of this Agreement and which remain unpaid at the time of such acceptance for
payment or payment. Parent will not issue certificates or scrip representing
fractional shares pursuant to the Offer. Parent will pay cash in lieu of
fractional shares in accordance with Section 2.02(d).
(b) As soon as practicable after the date of this Agreement
and consistent with applicable law, Parent shall (i) file or submit for review
on a confidential basis and ultimately file with the SEC a registration
statement on Form F-4, which will include a preliminary prospectus containing
the information required under Rule 14d-4(b) under the Exchange Act and the
information required pursuant to Rule 13e-3 under the Exchange Act, to register
the offer and sale of Parent ADSs (as defined in Section 2.01(c)), as evidenced
by Parent ADRs (as defined in Section 2.01(c)), and the Parent Ordinary Shares
(as defined in Section 2.01(c)) underlying the Parent ADSs, pursuant to the
Offer (as supplemented or amended, the "FORM F-4"); and (ii) together with
Merger Sub and the Company, concurrently with the filing of the Form F-4, file
with the SEC a combined Rule 13e-3 Transaction Statement on Schedule 13E-3 and
Tender Offer Statement on Schedule TO under cover of Schedule TO with respect to
the Offer which shall contain or incorporate by reference, among other things, a
preliminary or final prospectus, as the case may be, in accordance with Rule
14d-4(b) under the Exchange Act and a related letter of transmittal (such
combined Rule 13e-3 Transaction Statement on Schedule 13E-3 and Tender Offer
Statement on Schedule TO under cover of Schedule TO, and the documents included
or incorporated by reference therein, pursuant to which the Offer will be made,
together with any supplements or amendments thereto, the "OFFER DOCUMENTS"); and
(ii) as soon as practicable after the Form F-4 shall become effective
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cause the Offer Documents to be disseminated to holders of Company Common Stock.
The Form F-4 shall comply in all material respects with the provisions of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and the Offer
Documents shall comply in all material respects with the provisions of the
Exchange Act, assuming the accuracy of the information provided in writing for
inclusion therein by the Company. Each of Parent, Merger Sub and the Company
shall (i) promptly correct any information provided by it for use in the Form
F-4 or the Offer Documents if and to the extent that such information shall have
become false or misleading in any material respect, (ii) take all steps
necessary to amend or supplement the Form F-4 and the Offer Documents and (iii)
cause the Form F-4 and the Offer Documents as so amended or supplemented to be
filed with the SEC and the Offer Documents as so amended or supplemented to be
disseminated to the holders of Company Common Stock, in each case as and to the
extent required by applicable Federal securities laws. The Company, the Special
Committee and their respective counsels shall be given the opportunity to review
the Form F-4 and the Offer Documents prior to filing with the SEC. Parent shall
provide the Company, the Special Committee and their respective counsels with a
copy of any written comments or telephonic notification of any oral comments
Parent or its counsel may receive from the SEC or its staff with respect to the
Form F-4 and the Offer Documents promptly after the receipt of such comments.
Parent and Merger Sub shall provide the Company, the Special Committee and their
respective counsels with a reasonable opportunity to participate in all material
communications with the SEC and its staff, including any material meetings and
telephone conferences, relating to the Form F-4, the Offer Documents or this
Agreement. If at any time after the date hereof this Agreement is terminated,
Parent and Merger Sub agree that they shall amend the Offer Documents to reflect
such termination.
(c) Parent and Merger Sub shall provide or cause to be
provided to the Exchange Agent (as defined in Section 2.02) on or prior to the
expiration of the Offer (and thereafter on a timely basis) the Parent ADRs and
funds necessary to make payment for any shares of Company Common Stock that
Parent and Merger Sub become obligated to purchase pursuant to the Offer.
Following the purchase by Parent and Merger Sub of shares of Company Common
Stock pursuant to the Offer and prior to the Effective Time, such shares of
Company Common Stock shall be divided and allocated to each of Parent (the
"Parent Allocated Tender Shares") and Merger Sub (the "Merger Sub Allocated
Tender Shares") on a basis to be mutually agreed by Parent and Merger Sub.
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SECTION 1.02. COMPANY ACTIONS. (a) The Company hereby approves
of and consents to the Offer, the Merger and the other transactions contemplated
by this Agreement, on the terms and subject to the conditions set forth in this
Agreement.
(b) On the date the Offer Documents are first disseminated to
holders of Company Common Stock, the Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the
Offer (such Schedule 14D-9, as supplemented or amended from time to time, the
"SCHEDULE 14D-9") describing the recommendations referred to in Section 3.03(b)
and shall mail the Schedule 14D-9 to the holders of Company Common Stock;
PROVIDED, HOWEVER, that the Company Board or the Special Committee may determine
not to make such recommendations or such recommendations may be withdrawn or
modified to the extent that the Special Committee determines in good faith,
after consultation with outside legal counsel, that such recommendations would
be inconsistent with its fiduciary duties to stockholders of the Company under
applicable law. The Schedule 14D-9 shall comply in all material respects with
the provisions of the Exchange Act, assuming the accuracy of the information
provided in writing for inclusion therein by Parent and Merger Sub. Each of the
Company, Parent and Merger Sub shall promptly correct any information provided
by it for use in the Schedule 14D-9 if and to the extent that such information
shall have become false or misleading in any material respect, and the Company
shall take all steps necessary to amend or supplement the Schedule 14D-9 and to
cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC
and disseminated to the holders of Company Common Stock, in each case as and to
the extent required by applicable Federal securities laws. Parent and its
counsel shall be given the opportunity to review the Schedule 14D-9 prior to its
initial filing with the SEC. The Company shall provide Parent and its counsel
with a copy of any written comments or telephonic notification of any oral
comments the Company or its counsel may receive from the SEC or its staff with
respect to the Schedule 14D-9 promptly after the receipt of such comments. The
Company shall provide Parent and Merger Sub and their counsel with a reasonable
opportunity to participate in all communications with the SEC and its staff,
including any meetings and telephone conferences, relating to the Schedule 14D-9
or this Agreement.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish Parent and Merger Sub promptly with mailing labels and
electronic files containing the names and addresses of the record holders of
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Company Common Stock as of a recent date and of those persons becoming record
holders subsequent to such date, together with copies of all lists of
stockholders, security position listings and computer files, and shall furnish
to Parent and Merger Sub such additional information and assistance (including
updated lists of stockholders, security position listings and computer files) as
Parent and Merger Sub may reasonably request in connection with communicating
the Offer to the Company's stockholders.
SECTION 1.03. THE MERGER. On the terms and subject to the
conditions set forth in this Agreement, and in accordance with the General
Corporation Law of the State of Delaware (the "DGCL"), Merger Sub shall be
merged with and into the Company at the Effective Time (as defined in Section
1.05). At the Effective Time, the separate corporate existence of Merger Sub
shall cease and the Company shall continue as the surviving corporation (the
"SURVIVING CORPORATION"). At the election of Parent, any direct or indirect
wholly owned subsidiary of Parent (that is incorporated in the State of
Delaware) may be substituted for Merger Sub as a constituent corporation in the
Merger. In such event, the parties shall execute an appropriate amendment to
this Agreement in order to reflect the foregoing.
SECTION 1.04. CLOSING. The closing (the "CLOSING") of the
Merger shall take place at the offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. on the second business day
following the satisfaction (or, to the extent permitted by Law (as defined in
Section 3.04), waiver by all applicable parties) of the conditions set forth in
Article VII, or at such other place, time and date as shall be agreed in writing
between Parent and the Company. The date on which the Closing occurs is referred
to in this Agreement as the "CLOSING DATE".
SECTION 1.05. EFFECTIVE TIME. Prior to the Closing, the
parties shall prepare, and on the Closing Date or as soon as practicable
thereafter shall cause to be filed with the Secretary of State of the State of
Delaware, a certificate of merger or certificate of ownership and merger or
other appropriate documents (in any such case, the "CERTIFICATE OF MERGER")
executed in accordance with the relevant provisions of the DGCL and shall make
all other filings or recordings required under the DGCL. The Merger shall become
effective at such time as the Certificate of Merger is duly filed with such
Secretary of State, or at such later time as Parent and the Company shall agree
and
8
specify in the Certificate of Merger (the time the Merger becomes effective
being the "EFFECTIVE TIME").
SECTION 1.06. EFFECT. The Merger shall have the effect set
forth in the DGCL.
SECTION 1.07. CERTIFICATE OF INCORPORATION AND BY-LAWS. (a)
The Restated Certificate of Incorporation of the Company, as in effect
immediately prior to the Effective Time, shall be the Restated Certificate of
Incorporation of the Surviving Corporation until thereafter changed or amended
as provided therein or by applicable Law.
(b) The By-laws of the Company, as in effect immediately prior
to the Effective Time, shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable Law.
SECTION 1.08. DIRECTORS. The directors of the Company
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation, until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
SECTION 1.09. OFFICERS. The officers of the Company
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation, until the earlier of their resignation or removal or until their
respective successors are duly elected or appointed and qualified, as the case
may be.
ARTICLE II
EFFECT ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
SECTION 2.01. EFFECT ON CAPITAL STOCK. At the Effective Time,
by virtue of the Merger and without any action on the part of the holder of any
shares of Company Common Stock or any shares of capital stock of Merger Sub:
(a) AFFILIATE SHARES, PARENT ALLOCATED TENDER SHARES AND
CAPITAL STOCK OF MERGER SUB. Each Affiliate Share issued and outstanding at the
Effective Time and each Parent Allocated Tender Share shall remain outstanding
as one fully paid and nonassessable share of common stock, par value $.01, of
the Surviving Corporation. The issued and outstanding shares of capital stock of
Merger Sub shall be converted into and become that number of fully paid and non-
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assessable shares of common stock, par value $.01 per share, of the Surviving
Corporation (the "MERGER SUB SHARES") as shall equal the total number of issued
and outstanding shares of Company Common Stock immediately prior to the
Effective Time minus the sum of (i) the total number of Affiliate Shares then
outstanding and (ii) the total number of Parent Allocated Tender Shares.
Immediately after the Effective Time, the Affiliate Shares, the Parent Allocated
Tender Shares, the Merger Sub Shares and the shares of Company Series D
Preferred Stock (as defined in Section 2.01(d)) shall constitute the only
outstanding shares of capital stock of the Surviving Corporation.
(b) CANCELLATION OF STOCK. Each share of Company Common Stock
that is held in treasury by the Company and each Merger Sub Allocated Tender
Share shall no longer be outstanding and shall automatically be canceled and
shall cease to exist, and no consideration shall be delivered or deliverable in
exchange therefor.
(c) CONVERSION OF COMPANY COMMON STOCK. (1) Other than the
Affiliate Shares, the Parent Allocated Tender Shares and the Merger Sub Shares
and subject to Sections 2.01(b), 2.01(e), 2.02(d) and 6.03, each issued and
outstanding share of Company Common Stock shall be converted into the right to
receive (A) 0.295 of an American depositary share (each a "PARENT ADS") of
Parent (the "PER SHARE STOCK CONSIDERATION") (each Parent ADS representing
one-half of an Ordinary Share, nominal value euro 9.15 per share, of Parent
("PARENT ORDINARY SHARE") and evidenced by one American depositary receipt
("PARENT ADR") issued in accordance with the Deposit Agreement dated as of June
24, 1996, among Parent, The Bank of New York, as depositary, and all owners from
time to time of Parent ADRs) and (B) $35.75 in cash, without interest (the "PER
SHARE CASH CONSIDERATION" and, together with the Per Share Stock Consideration,
the "PER SHARE MERGER CONSIDERATION"). The consideration payable upon the
conversion of shares of Company Common Stock pursuant to this Section 2.01(c) is
referred to collectively as the "MERGER CONSIDERATION".
(2) As of the Effective Time, all shares of Company Common
Stock so converted pursuant to Section 2.01(c)(1) shall no longer be outstanding
and shall automatically be canceled and shall cease to exist, and each holder of
a certificate representing any such shares of Company Common Stock shall cease
to have any rights with respect thereto, except the right to receive the Merger
Consideration payable with respect to such shares upon surrender of such
certificate, any cash in lieu of fractional Parent ADSs to be issued in exchange
for Company
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Common Stock pursuant to Section 2.02(d) and any dividends or other
distributions to which such holder may be entitled pursuant to Section 2.02(c)
or (e), in each case without interest.
(d) COMPANY SERIES D PREFERRED STOCK. Subject to Section
2.01(e), each issued and outstanding share of Cumulative Convertible Preferred
Stock, Series D, par value $1.00 per share, of the Company (the "COMPANY SERIES
D PREFERRED STOCK") outstanding immediately prior to the Effective Time shall
remain outstanding as Series D Preferred Stock of the Surviving Corporation and
will have such terms as set forth in the Certificate of Designations,
Preferences, and Relative, Participating, Optional and Other Special Rights of
Preferred Stock and Qualifications, Limitations and Restrictions Thereof of the
Company, dated as of December 8, 1993, pursuant to which they were issued (the
"SERIES D CERTIFICATE OF DESIGNATIONS").
(e) APPRAISAL RIGHTS. Notwithstanding anything in this
Agreement to the contrary, shares ("APPRAISAL SHARES") of Company Common Stock
and Company Series D Preferred Stock that are outstanding immediately prior to
the Effective Time and that are held by any person who is entitled to demand,
and who properly demands, appraisal of such Appraisal Shares pursuant to, and
who complies in all respects with, Section 262 of the DGCL ("SECTION 262") shall
not be converted into the right to receive the Merger Consideration as provided
in Section 2.01(c) in the case of Company Common Stock, or shall not remain
outstanding as provided in Section 2.01(d) in the case of Company Series D
Preferred Stock, but rather the holders of Appraisal Shares shall be entitled to
payment of the fair value of such Appraisal Shares in accordance with Section
262; PROVIDED, HOWEVER, that if any such holder shall fail to perfect or
otherwise shall waive, withdraw or lose the right to appraisal under Section
262, then the right of such holder to be paid the fair value of such holder's
Appraisal Shares shall cease and such Appraisal Shares shall be deemed to have
been converted as of the Effective Time into, and to have become exchangeable
solely for, the right to receive the Merger Consideration (but without interest
thereon) as provided in Section 2.01(c) in the case of Company Common Stock, or
shall remain outstanding as provided in Section 2.01(d) in the case of Company
Series D Preferred Stock. The Company shall serve prompt notice to Parent of any
demands received by the Company for appraisal of any shares, and Parent shall
have the right to participate in and direct all negotiations and proceedings
with respect to such demands. Prior to the Effective Time, the Company shall
not, without the prior written consent of Parent, make
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any payment with respect to, or settle or offer to settle, any such demands, or
agree to do any of the foregoing.
SECTION 2.02. EXCHANGE OF CERTIFICATES. (a) EXCHANGE AGENT.
Prior to the Effective Time, Parent shall select a bank or trust company, which
shall be reasonably acceptable to the Company, to act as exchange agent (the
"EXCHANGE AGENT") for the payment of the Merger Consideration upon surrender of
certificates which immediately prior to the Effective Time represented Company
Common Stock. Immediately prior to the Effective Time, Parent shall deposit or
shall cause to be deposited with or for the account of the Exchange Agent, for
the benefit of the holders of shares of Company Common Stock, for exchange in
accordance with this Article II, through the Exchange Agent, the Merger
Consideration issuable or payable pursuant to Section 2.01 in exchange for
outstanding shares of Company Common Stock (the certificates representing Parent
ADSs and cash so deposited, including any cash payable in lieu of fractional
Parent ADSs) and any dividends or distributions with respect to such Parent ADSs
with a record date after the Effective Time (without any interest on any such
cash, dividends or distributions), being hereinafter referred to as the
"EXCHANGE FUND"), together with all cash and other property to which holders of
Company Common Stock are entitled pursuant to Section 2.02(e). For purposes of
determining the number of Parent ADSs and the amount of cash to be deposited by
Parent in the Exchange Fund, Parent shall assume that no holder of Company
Common Stock will perfect such holder's right to appraisal of such holder's
Company Common Stock or be entitled to a cash payment in lieu of fractional
Parent ADSs.
(b) EXCHANGE PROCEDURE. As soon as reasonably practicable
after the Effective Time, the Exchange Agent shall mail to each holder of record
of a certificate or certificates (the "CERTIFICATES") that immediately prior to
the Effective Time represented outstanding shares of Company Common Stock whose
shares were converted into the right to receive Merger Consideration pursuant to
Section 2.01, (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Exchange Agent and shall be in
such form and have such other provisions as Parent may reasonably specify) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for Merger Consideration. Upon surrender of a Certificate for
cancellation to the Exchange Agent, together with such letter of transmittal,
duly executed, and such other documents as may reasonably be required by the
Exchange Agent,
12
the holder of such Certificate shall be entitled to receive in exchange therefor
the Merger Consideration into which the shares of Company Common Stock
theretofore represented by such Certificate shall have been converted into the
right to receive pursuant to Section 2.01, any cash in lieu of fractional Parent
ADSs to which such holder is entitled pursuant to Section 2.02(d) and any
dividends or other distributions to which such holder is entitled pursuant to
Section 2.02(c), and the Certificate so surrendered shall forthwith be canceled.
In the event of a transfer of ownership of Company Common Stock that is not
registered in the transfer records of the Company, payment may be made to a
person other than the person in whose name the Certificate so surrendered is
registered, if such Certificate shall be properly endorsed or otherwise be in
proper form for transfer and the person requesting such payment shall pay any
transfer or other taxes required by reason of the payment to a person other than
the registered holder of such Certificate or establish to the satisfaction of
Parent that such tax has been paid or is not applicable. The Merger
Consideration will be delivered by the Exchange Agent as promptly as practicable
following the surrender of a Certificate, the related letter of transmittal,
duly executed, and such other documents as may reasonably be required by the
Exchange Agent. Until surrendered as contemplated by this Section 2.02, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the Merger Consideration into
which the shares of Company Common Stock theretofore represented by such
Certificate have been converted into the right to receive pursuant to Section
2.01, any cash in lieu of fractional Parent ADSs to which such holder is
entitled pursuant to Section 2.02(d) and any dividends or other distributions to
which such holder is entitled pursuant to Section 2.02(c), in each case, without
interest thereon. No interest shall be paid or accrue on the cash payable upon
surrender of any Certificate.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No
dividends or other distributions with respect to the Parent ADSs with a record
date after the Effective Time shall be paid to the holder of any unsurrendered
Certificate, and no cash payment in lieu of fractional Parent ADSs shall be paid
to any such holder pursuant to Section 2.02(d), until the surrender of such
Certificate in accordance with this Article II. Subject to applicable Law,
following surrender of any such Certificate, there shall be paid to the holder
of the Parent ADSs issued in exchange therefor, without interest, (i) at the
time of such surrender, the amount of cash payable in lieu of a
13
fractional Parent ADS to which such holder is entitled pursuant to Section
2.02(d) and the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to such Parent ADSs and
(ii) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time but prior to such
surrender and with a payment date subsequent to such surrender payable with
respect to such Parent ADSs.
(d) NO FRACTIONAL SHARES. (i) No certificates or scrip
representing fractional Parent ADSs shall be issued upon the surrender for
exchange of Certificates pursuant to this Article II, no dividend or
distribution of Parent shall relate to such fractional interests, and such
fractional interests will not entitle the owner thereof to vote or to any rights
of a holder of Parent ADSs. For purposes of this Section 2.02(d), all fractional
shares to which a single record holder would be entitled shall be aggregated and
calculations shall be rounded to three decimal places.
(ii) Parent shall pay to each former holder of Company Common
Stock an amount in cash equal to the product obtained by multiplying (A) the
fractional interest to which such former holder (after taking into account all
shares of Company Common Stock held at the Effective Time by such holder) would
otherwise be entitled by (B) the average of the closing prices for a Parent ADS
as reported on the New York Stock Exchange (the "NYSE") Composite Transaction
Tape (as reported in THE WALL STREET JOURNAL, Northeastern edition, or, if not
reported thereby, any other authoritative source reasonably chosen by Parent)
for the five consecutive trading days ending on the trading day immediately
prior to the Closing Date. Parent will deposit or will cause to be deposited a
sufficient amount of cash with the Exchange Agent to cover the payments required
to be made pursuant to this Section 2.02(d)(ii).
(iii) As soon as practicable after the determination of the
amount of cash, if any, to be paid to holders of Certificates formerly
representing Company Common Stock with respect to any fractional interests, the
Exchange Agent shall make available such amounts to such holders of Certificates
formerly representing Company Common Stock subject to and in accordance with the
terms of Section 2.02(c).
(e) NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. The
Merger Consideration paid in accordance with the terms of this Article II upon
conversion of any shares of Company Common Stock shall be deemed to have been
paid in
14
full satisfaction of all ownership rights pertaining to such shares of Company
Common Stock, SUBJECT, HOWEVER, to the Surviving Corporation's obligation to pay
any dividends or make any other distributions with a record date prior to the
Effective Time that may have been declared or made by the Company on such shares
of Company Common Stock in accordance with the terms of this Agreement or prior
to the date of this Agreement and which remain unpaid at the Effective Time, and
after the Effective Time there shall be no further registration of transfers on
the stock transfer books of the Surviving Corporation of shares of Company
Common Stock that were outstanding immediately prior to the Effective Time
(other than the Affiliate Shares and the Parent Allocated Tender Shares). If,
after the Effective Time, any Certificates are presented to the Surviving
Corporation or the Exchange Agent for any reason, they shall be canceled and
exchanged as provided in this Article II.
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange
Fund that remains undistributed to the former holders of Company Common Stock
for six months after the Effective Time shall be delivered to the Surviving
Corporation, upon demand, and any former holder of shares of Company Common
Stock who has not theretofore complied with this Article II shall thereafter
look only to the Surviving Corporation for payment of its claim for Merger
Consideration and any dividends or distributions with respect to the Parent
ADSs.
(g) NO LIABILITY. None of Parent, Merger Sub, the Company or
the Exchange Agent shall be liable to any person in respect of any portion of
the Exchange Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar Law.
(h) INVESTMENT OF EXCHANGE FUND. The Exchange Agent shall
invest any cash included in the Exchange Fund, as directed by Parent, on a daily
basis; PROVIDED that, in the case of any losses incurred as a result of such
investments, Parent shall take all actions necessary to ensure that the Exchange
Fund includes cash sufficient to satisfy Parent's obligations to pay the Merger
Consideration payable pursuant to Section 2.01 in exchange for outstanding
shares of Company Common Stock, any cash payable in lieu of fractional Parent
ADSs pursuant to Section 2.02(d) and any dividends or distributions with respect
to Parent ADSs payable pursuant to Section 2.02(c). Any interest and other
income resulting from such investments shall be paid to Parent.
15
(i) WITHHOLDING RIGHTS. The Surviving Corporation shall be
entitled to deduct and withhold from the consideration otherwise payable to any
holder of Company Common Stock pursuant to this Agreement such amounts as may be
required to be deducted and withheld with respect to the making of such payment
under the United States Internal Revenue Code of 1986, as amended (the "CODE"),
or under any provision of state, local or foreign tax Law. To the extent that
amounts are so withheld and paid over or caused to be paid over to the
appropriate taxing authority by the Surviving Corporation, such withheld amounts
shall be treated for all purposes of this Agreement as having been paid to the
holder of the shares of Company Common Stock in respect of which such deduction
and withholding was made by the Surviving Corporation.
(j) LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any
Certificate evidencing shares of Company Common Stock shall have been lost,
stolen or destroyed, the holder of such lost, stolen or destroyed Certificate
shall execute an affidavit of that fact upon request. The holder of any such
lost, stolen or destroyed Certificate shall also deliver a reasonable indemnity
against any claim that may be made against Parent, Merger Sub, the Surviving
Corporation or the Exchange Agent with respect to the Certificate alleged to
have been lost, stolen or destroyed. The affidavit and any indemnity which may
be required hereunder shall be delivered to the Exchange Agent, who shall be
responsible for making payment for such lost, stolen or destroyed Certificate
pursuant to the terms hereof.
(k) ADJUSTMENTS TO PREVENT DILUTION. In the event that Parent
changes the number of Parent Ordinary Shares represented by each Parent ADS
issued and outstanding prior to the Effective Time as a result of a
reclassification, stock split, share combination, stock dividend or
distribution, recapitalization, merger, subdivision, issuer tender or exchange
offer or other similar transaction, the Per Share Stock Consideration shall be
appropriately adjusted to reflect such reclassification, stock split, share
combination, stock dividend or distribution, recapitalization, merger,
subdivision, issuer tender or exchange offer or other similar transaction.
16
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i) as disclosed in the Company SEC Documents (as
defined in Section 3.05) or in the reports, schedules, forms, statements and
other documents required to be filed with the SEC by each of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx, Inc. ("DLJ") and Alliance Capital Management Corporation, Alliance
Capital Management Holding, L.P. and Alliance Capital Management, L.P.
(collectively, "ALLIANCE"), in each case filed and publicly available prior to
the date of this Agreement (the "COMPANY FILED SEC DOCUMENTS") and (ii) for the
matters set forth in the disclosure schedule dated the date hereof delivered by
the Company to Parent prior to the execution of this Agreement (the "DISCLOSURE
SCHEDULE"), it being understood that the Disclosure Schedule shall be deemed
disclosure with respect to the specific Section of this Agreement to which the
information stated in such disclosure relates and such other Sections of this
Agreement to the extent a matter is disclosed in such a way as to make its
relevance to the information called for by such other Section readily apparent,
the Company represents and warrants to Parent and Merger Sub as follows:
SECTION 3.01. ORGANIZATION, STANDING AND POWER. Each of the
Company and each Significant Company Subsidiary (as defined below in this
Section 3.01) is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is organized. Each of the Company and its
Significant Company Subsidiaries has full corporate or, in the case of a
Significant Company Subsidiary that is not a corporation, other power and
authority necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct its businesses as presently conducted, except where
such failure, individually or in the aggregate, has not had and would not
reasonably be expected to have a material adverse effect on the Company (after
giving effect to the consummation of the transactions contemplated by the Stock
Purchase Agreement, dated as of August 30, 2000, among Credit Suisse Group
("CSG"), Parent, the Company, The Equitable Life Assurance Society of the United
States ("EQUITABLE LIFE") and AXA Participations Belgium (as amended, the
"CSG/DLJ PURCHASE AGREEMENT")), on the ability of the Company to perform its
obligations under this Agreement or on the ability of the Company to consummate
the Offer, the Merger and the other transactions contemplated by this Agreement
(a "COMPANY MATERIAL ADVERSE EFFECT"). Each of the Company and its Significant
Company Subsidiaries is duly qualified to do business in each jurisdiction where
the
17
nature of its business or their ownership or leasing of properties make such
qualification necessary except where the failure to so qualify, individually or
in the aggregate, has not had and would not reasonably be expected to have a
Company Material Adverse Effect. For purposes of this Agreement, a "SIGNIFICANT
COMPANY SUBSIDIARY" means any subsidiary of the Company that constitutes a
significant subsidiary within the meaning of Rule 1-02 of Regulation S-X of the
SEC.
SECTION 3.02. CAPITAL STRUCTURE. (a) The authorized capital
stock of the Company consists of 2,000,000,000 shares of Company Common Stock
and 10,000,000 shares of Preferred Stock, par value $1.00 per share. As of the
close of business on September 30, 2000, (i) 434,568,810 shares of Company
Common Stock were issued and outstanding, (ii) 20,707,776 shares of Company
Common Stock were held by the Company in its treasury, (iii) no shares of
Preferred Stock were issued or outstanding other than 43,920 shares of Company
Series D Preferred Stock, (iv) 28,231 shares of Company Common Stock were
deferred and issuable under the 1998 Stock Plan for Directors and (v) 24,775,229
shares of Company Common Stock were subject to outstanding options to purchase
Company Common Stock (each, a "COMPANY STOCK OPTION" and collectively, the
"COMPANY STOCK OPTIONS") granted under any of The Equitable Companies
Incorporated 1997 Stock Incentive Plan and The Equitable Companies Incorporated
1991 Stock Incentive Plan (collectively, the "COMPANY STOCK PLANS") and
44,054,793 additional shares of Company Common Stock were reserved for issuance
pursuant to the Company Stock Plans and upon conversion of outstanding shares of
Company Series D Preferred Stock. During the period from September 30, 2000 to
the date of this Agreement, the Company has not issued any shares of capital
stock (other than pursuant to the exercise of Company Stock Options) or Company
Stock Options. All outstanding shares of Company Common Stock are, and such
shares that may be issued prior to the Effective Time will be when issued, duly
authorized, validly issued, fully paid and nonassessable. There are not any
bonds, debentures, notes or other indebtedness of the Company having the right
to vote (or convertible into, or exchangeable for, securities having the right
to vote) on matters on which holders of Company Common Stock may vote ("VOTING
COMPANY DEBT"). Except as set forth above and except for this Agreement and the
transactions contemplated hereby, there are not, as of the date of this
Agreement, any options, warrants, rights, convertible or exchangeable
securities, "phantom" stock rights, stock appreciation rights, stock-based
performance units, commitments, Contracts, arrangements or undertakings of any
kind to which the Company or any of its subsidiaries is a
18
party or by which any of them is bound (i) obligating the Company or any of its
subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock of, or other equity interests in, or
any security convertible or exercisable for or exchangeable into any capital
stock of, or other equity interest in, the Company or any Voting Company Debt,
(ii) obligating the Company or any of its subsidiaries to issue, grant, extend
or enter into any such option, warrant, call, right, security, commitment,
Contract, arrangement or undertaking or (iii) that give any person the right to
receive any economic benefit or right similar to or derived from the economic
benefits and rights accruing to holders of capital stock of, or other equity
interests in, the Company. As of the date of this Agreement, there are not any
outstanding contractual obligations of the Company or any of its subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock of, or other
equity interests in, the Company.
(b) Except for this Agreement, the transactions contemplated
hereby and the Voting Trust Agreement, there are not any voting trusts or other
agreements or understandings to which the Company or any of its subsidiaries is
a party or is bound with respect to the voting of the capital stock of, or other
equity interests in, the Company.
SECTION 3.03. AUTHORITY; EXECUTION AND DELIVERY;
ENFORCEABILITY. (a) The Company has the requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery by the Company of
this Agreement and the consummation by the Company of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of the Company, subject, in the case of the Merger,
to receipt of the Company Stockholder Approval (as defined in Section 3.03(c)),
to the extent required by applicable Law. The Company has duly executed and
delivered this Agreement, and, assuming the due authorization, execution and
delivery by each of Parent and Merger Sub, this Agreement constitutes the
Company's legal, valid and binding obligation, enforceable against it in
accordance with its terms.
(b) The Company Board, at a meeting duly called and held,
acting on the unanimous recommendation of the Special Committee, duly and
unanimously adopted resolutions (i) approving this Agreement, the Offer, the
Merger and the other transactions contemplated hereby, (ii) determining that the
terms of the Offer and the Merger are fair to and
19
in the best interests of the Company and the holders of Company Common Stock
(other than the Affiliate Shareholders), (iii) declaring that this Agreement is
advisable and (iv) recommending that the holders of Company Common Stock accept
the Offer and tender their shares of Company Common Stock pursuant to the Offer,
and, to the extent applicable, that the holders of Company Common Stock adopt
this Agreement. Such resolutions are sufficient to render inapplicable to Merger
Sub, this Agreement, the Offer, the Merger, the Voting Agreement and the other
transactions contemplated by this Agreement the restrictions on business
combinations set forth in Section 203 of the DGCL.
(c) The only vote of holders of any class or series of the
Company's capital stock necessary to approve and adopt this Agreement and the
Merger is the adoption of this Agreement by the holders of a majority of the
outstanding shares of Company Common Stock at a meeting or by written consent in
lieu of a meeting (the "COMPANY STOCKHOLDER APPROVAL").
SECTION 3.04. NO CONFLICTS; CONSENTS. (a) The execution and
delivery by the Company of this Agreement do not, and the performance of this
Agreement and the consummation of the transactions contemplated hereby will
not, conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or to increased, additional, accelerated or guaranteed rights or
entitlements of any person under, or result in the creation of any pledge, lien,
charge, mortgage, encumbrance or security interest of any kind or nature
whatsoever (collectively, "LIENS") upon any of the properties or assets of the
Company or any of its subsidiaries under, any provision of (i) (A) the Company's
Restated Certificate of Incorporation, as amended (the "COMPANY CHARTER"), or
the Company's By-laws (the "COMPANY BY-LAWS") or (B) the comparable charter or
organizational documents of any of the Company's subsidiaries, (ii) any
contract, lease, license, indenture, note, bond, agreement, permit, concession,
franchise or other instrument (a "CONTRACT") to which the Company or any of its
subsidiaries is a party or by which any of their respective properties or
assets is bound or (iii) subject to the filings and other matters referred to in
Section 3.04(b), any judgment, order or decree ("JUDGMENT") or statute, law,
ordinance, rule or regulation ("LAW") applicable to the Company or any of its
subsidiaries or their respective properties or assets, other than, in the case
of clauses (i)(B), (ii) and (iii) above,
20
any such items that, individually or in the aggregate, have not had and would
not reasonably be expected to have a Company Material Adverse Effect.
(b) No consent, approval, license, permit, order,
authorization or waiver ("CONSENT") of, or registration, declaration or filing
with, or permit from, any Federal, state, local or foreign government or any
court of competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (a "GOVERNMENTAL
ENTITY"), is required to be obtained or made by or with respect to the Company
or any of its subsidiaries in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than (i) filings with the SEC pursuant to the
Exchange Act and the Securities Act (including any reports required to be filed
under Sections 13 and 16 of the Exchange Act), (ii) the filing and recordation
of appropriate merger and similar documents as required by the DGCL, (iii) any
registration, declaration or filing that may be required under applicable Law
relating to insurance or other financial services businesses and (iv) where the
failure to obtain such Consents or to make such registrations, declarations or
filings or to obtain such permits, would not reasonably be expected to,
individually or in the aggregate, have a Company Material Adverse Effect.
SECTION 3.05. SEC DOCUMENTS. Each of the Company and Equitable
Life has filed all reports, schedules, forms, statements and other documents
required to be filed by it with the SEC since January 1, 1999 (the "COMPANY SEC
DOCUMENTS"). As of its respective date, each Company SEC Document, including any
financial statements or schedules included therein, complied in all material
respects with the requirements of the Exchange Act or the Securities Act, as the
case may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such Company SEC Document, and did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The consolidated
financial statements of the Company included in the Company SEC Documents comply
as to form in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with U.S. generally accepted accounting principles ("US
GAAP") (except, in the case of unaudited statements, as permitted by Form 10-Q
of the SEC) applied on a consistent basis during the periods involved
21
(except as may be indicated in the notes thereto) and fairly present, in all
material respects, the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates thereof and the consolidated results
of their operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal, recurring year-end audit adjustments).
SECTION 3.06. INFORMATION SUPPLIED. None of the information
supplied or to be supplied by the Company for inclusion or incorporation by
reference in (i) the Schedule 14D-9, any Schedule 13E-3 (as defined in Section
6.01), the Form F-4, the Offer Documents or any Post-Effective Amendment (as
defined in Section 6.01) will, at the respective times any such documents or any
amendments or supplements thereto are filed with the SEC, are first published,
sent or given to the holders of Company Common Stock or become effective under
the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any Proxy Statement or Information
Statement (each as defined in Section 6.01) will, at the date such Proxy
Statement or Information Statement is first mailed to holders of Company Common
Stock or at the time of any Company Stockholders Meeting (as defined in Section
6.01), contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading. The Schedule 14D-9, any Proxy Statement or Information Statement and
any Schedule 13E-3 will comply as to form in all material respects with the
requirements of all applicable Laws, including the Exchange Act and the rules
and regulations thereunder. No representation or warranty is made by the Company
with respect to statements made or incorporated by reference therein based on
information supplied by Parent or Merger Sub specifically for inclusion or
incorporation by reference therein.
SECTION 3.07. OPINION OF FINANCIAL ADVISOR. The Special
Committee has received the opinion of Xxxxxxxxxxx Xxxxxxx & Co., dated the date
of this Agreement, to the effect that, as of such date, the consideration to be
received in the Offer and the Merger by the holders of shares of Company Common
Stock (other than the Affiliate Shareholders) is fair to such stockholders from
a financial point of view, a copy of which opinion will be delivered to Parent
on or promptly after the date of this Agreement.
22
SECTION 3.08. BROKERS. No broker, investment banker, financial
advisor or other person, other than Xxxxxxxxxxx Xxxxxxx & Co. and Xxxxxx Xxxxxxx
& Co. Incorporated, the fees and expenses of which will be paid by the Company,
is entitled to any broker's, finder's, financial advisor's or other similar fee
or commission in connection with the Offer, the Merger or the other transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Company or the Special Committee.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
Except as set forth in the Parent SEC Documents (as defined in
Section 4.05) filed and publicly available prior to the date of this Agreement
(the "PARENT FILED SEC DOCUMENTS"), Parent and Merger Sub, jointly and
severally, represent and warrant to the Company as follows:
SECTION 4.01. ORGANIZATION, STANDING AND POWER. Each of Parent
and Merger Sub is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is organized and has full corporate
power and authority necessary to enable it to own, lease or otherwise hold its
properties and assets and to conduct its businesses as presently conducted,
except where the failure, individually or in the aggregate, has not had and
would not reasonably be expected to have a material adverse effect on Parent, on
the ability of Parent or Merger Sub to perform its obligations under this
Agreement or on the ability of Parent or Merger Sub to consummate the Offer, the
Merger and the other transactions contemplated by this Agreement (a "PARENT
MATERIAL ADVERSE EFFECT"). Each of Parent and Merger Sub is duly qualified to do
business in each jurisdiction where the nature of its business or their
ownership or leasing of properties make such qualification necessary except
where the failure to so qualify, individually or in the aggregate, has not had
and would not reasonably be expected to have a Parent Material Adverse Effect.
SECTION 4.02. CAPITAL STRUCTURE. (a) As of the close of
business on September 20, 2000, (i) 395,217,111 Parent Ordinary Shares were
issued and outstanding, all of which were validly issued, fully paid and
nonassessable, (ii) 4,705,795 Parent Ordinary Shares were held by Parent in its
treasury or by subsidiaries of Parent, (iii) 24,603,626
23
Parent Ordinary Shares were reserved for issuance upon conversion of outstanding
redeemable bonds and convertible notes and (iv) 1,970,996 Parent Ordinary Shares
were subject to outstanding options to purchase Parent Ordinary Shares or Parent
ADSs. No approval of the shareholders of Parent is required to authorize the
Parent ADSs to be issued in connection with the Offer and the Merger. The Parent
Ordinary Shares represented by the Parent ADSs to be issued in connection with
the Offer and the Merger, will be, when issued, validly issued, fully paid and
nonassessable.
(b) The authorized capital stock of Merger Sub consists of
1,000 shares of common stock, par value $1.00 per share, all of which have been
validly issued, are fully paid and nonassessable and are owned by Parent free
and clear of any Lien. As of the date of this Agreement, Merger Sub does not
own, nor is it party to any agreement (other than this Agreement) pursuant to
which it has the right to acquire, any shares of Company Common Stock.
SECTION 4.03. AUTHORITY; EXECUTION AND DELIVERY;
ENFORCEABILITY. Each of Parent and Merger Sub has the requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery by each
of Parent and Merger Sub of this Agreement and the consummation by each of
Parent and Merger Sub of the transactions contemplated by this Agreement have
been duly authorized by all necessary corporate or shareholder action on the
part of Parent and Merger Sub. Parent, as sole stockholder of Merger Sub, has,
simultaneous with the execution and delivery hereof, adopted this Agreement.
Each of Parent and Merger Sub has duly executed and delivered this Agreement,
and this Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
SECTION 4.04. NO CONFLICTS; CONSENTS. (a) The execution and
delivery by each of Parent and Merger Sub of this Agreement do not, and the
performance of this Agreement and the consummation of the transactions
contemplated hereby will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or to
loss of a material benefit under, or to increased, additional, accelerated or
guaranteed rights or entitlements of any person under, or result in the creation
of any Lien upon any of the properties or assets of Parent or any of its
subsidiaries under, any provision of (i) the charter or other comparable
organizational documents of Parent or any of its
24
subsidiaries (other than the Company and its subsidiaries), (ii) any Contract to
which Parent or any of its subsidiaries (other than the Company and its
subsidiaries) is a party or by which any of their respective properties or
assets is bound or (iii) subject to the filings and other matters referred to in
Section 4.04(b), any Judgment or Law applicable to Parent or any of its
subsidiaries (other than the Company and its subsidiaries) or their respective
properties or assets, other than, in the case of clauses (ii) and (iii) above,
any such items that, individually or in the aggregate, have not had and would
not reasonably be expected to have a Parent Material Adverse Effect.
(b) No Consent of, or registration, declaration or filing
with, or permit from, any Governmental Entity is required to be obtained or made
by or with respect to Parent or any of its subsidiaries (other than the Company
and its subsidiaries) in connection with the execution, delivery and performance
of this Agreement or the consummation of the transactions contemplated hereby,
other than (i) filings with or furnishings to the SEC pursuant to the Exchange
Act and the Securities Act (including any reports required to be filed or
furnished under Xxxxxxxx 00 xxx 00 xx xxx Xxxxxxxx Xxx), (xx) the filing and
recordation of appropriate merger and similar documents as required by the DGCL,
(iii) any registration, declaration or filing that may be required under
applicable Law relating to insurance or other financial services businesses and
(iv) where the failure to obtain such Consents or to make such registrations,
declarations or filings or to obtain such permits, would not, individually or in
the aggregate, reasonably be expected to have a Parent Material Adverse Effect.
SECTION 4.05. SEC DOCUMENTS. Parent has filed or furnished, as
applicable, all reports, schedules, forms, statements and other documents
required to be filed by it with or furnished by it to the SEC since January 1,
1999 (the "PARENT SEC DOCUMENTS"). As of its respective date, each Parent SEC
Document, including any financial statements or schedules included therein,
complied in all material respects with the requirements of the Exchange Act or
the Securities Act, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such Parent SEC Document, and did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The consolidated financial statements of Parent and its consolidated
subsidiaries included in the Parent SEC Documents have been prepared in
accordance with generally
25
accepted accounting principles in France ("FRENCH GAAP") applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto), include such additional disclosures as are required by, and comply as
to form in all material respects with, the published rules and regulations of
the SEC with respect thereto, and present fairly, in all material respects, the
consolidated financial position of Parent and its consolidated subsidiaries as
of the dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal, recurring year-end audit adjustments).
SECTION 4.06. INFORMATION SUPPLIED. None of the information
supplied or to be supplied by Parent or Merger Sub for inclusion or
incorporation by reference in (i) the Form F-4, the Offer Documents, any
Post-Effective Amendment and any Schedule 13E-3 will, at the respective times
any such documents or any amendments or supplements thereto are filed with the
SEC, are first published, sent or given to holders of Company Common Stock or
become effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or (ii) any Proxy
Statement or Information Statement will, at the date such Proxy Statement or
Information Statement is first mailed to the holders of Company Common Stock or
at the time of any Company Stockholders Meeting, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Form F-4, the Offer
Documents, any Post-Effective Amendment and any Schedule 13E-3 will comply as to
form in all material respects with the requirements of all applicable Laws,
including the Securities Act and the Exchange Act, as applicable, and the rules
and regulations thereunder.
SECTION 4.07. FINANCING. Parent has or will have available,
prior to the expiration of the initial period of the Offer and through the
consummation of the Merger, sufficient funds to enable Parent and Merger Sub to
consummate the Offer, the Merger and the other transactions contemplated hereby
and to pay all related expenses.
SECTION 4.08. BROKERS. No broker, investment banker, financial
advisor or other person, other than Xxxxxxx, Sachs & Co., Lazard Freres & Co.
LLC and BNP Paribas, the fees and expenses of which will be paid by Parent, is
entitled to any broker's, finder's, financial
26
advisor's or other similar fee or commission in connection with the Offer, the
Merger and the other transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Parent.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 5.01. CONDUCT OF BUSINESS. (a) CONDUCT OF BUSINESS BY
THE COMPANY. Except for (i) matters expressly permitted or contemplated by this
Agreement and (ii) matters set forth in the Disclosure Schedule, from the date
of this Agreement to the Effective Time the Company shall, and shall cause each
of its subsidiaries (other than DLJ and Alliance and their respective
subsidiaries) to (1) conduct its business in the usual, regular and ordinary
course consistent with past practice, including with respect to employee
compensation and benefits (including entering into employment agreements or
similar arrangements), severance and retirement benefits, issuance of debt
securities, loans to subsidiaries, material acquisitions, or sales of material
assets; (2) use all reasonable efforts to preserve intact its current business
organization, keep available the services of its current officers and employees
and maintain its relationships and goodwill with agents, customers, suppliers,
licensors, licensees, distributors and others having business dealings with them
to the end that its goodwill and ongoing business shall be unimpaired at the
Effective Time; (3) continue to submit and/or report matters to its Board or
Directors or similar governance body (or the appropriate committee thereof) for
approval or review, as the case may be, in the usual, regular and ordinary
course consistent with past practice; and (4) continue to consult Parent on all
material matters in the usual, regular and ordinary course consistent with past
practice. In the case of DLJ and Alliance and their respective subsidiaries, the
Company shall not authorize or cause any such subsidiary to take any action that
would violate the immediately preceding sentence. In addition, and without
limiting the generality of the foregoing, except for matters expressly
contemplated or permitted by this Agreement, from the date of this Agreement to
the Effective Time, the Company shall not do any of the following without the
prior written consent of Parent:
(i) (A) declare, set aside or pay any dividends on, or make
any other distributions in respect of, any of its capital stock or
other equity interests, other than regular cash dividends with respect
to the Company
27
Common Stock not in excess of $0.0250 per share and regular cash
dividends with respect to the Company Series D Preferred Stock in
accordance with the Series D Certificate of Designations, as amended to
the date of this Agreement, in each case with usual declaration, record
and payment dates and in accordance with the Company's past dividend
policy, (B) split, combine or reclassify any of its capital stock or
other equity interests or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of
its capital stock or other equity interests (other than the conversion
of shares of Company Series D Preferred Stock into shares of Company
Common Stock in accordance with the Series D Certificate of
Designations, as amended to the date of this Agreement) or (C) except
in connection with existing Company Benefit Plans in accordance with
their respective terms on the date hereof and consistent with
applicable Law and past practice, purchase, redeem or otherwise acquire
any shares of capital stock of or any other securities of the Company
or any rights, warrants or options to acquire any such shares or other
securities;
(ii) except (x) for the issuance of shares of Company Common
Stock upon the exercise of Company Stock Options outstanding as of the
date hereof in accordance with their terms on the date hereof or
pursuant to the 1998 Stock Plan for Directors in accordance with its
terms on the date hereof, (y) for new grants of Company Stock Options
to newly hired employees in the ordinary course of business consistent
with past practice and the issuance of shares of Company Common Stock
upon the exercise of such new grants in accordance with their terms and
(z) for the issuance of shares of Company Common Stock upon the
conversion of Company Series D Preferred Stock in accordance with the
Series D Certificate of Designations, as amended to the date of this
Agreement, issue, deliver, sell or grant (A) any shares of its capital
stock or other equity interests, (B) any Voting Company Debt or other
voting securities, (C) any securities convertible into or exchangeable
for, or any options, warrants or rights to acquire, any such shares,
interests, Voting Company Debt, voting securities or convertible or
exchangeable securities or (D) any "phantom" stock, "phantom" stock
rights, stock appreciation rights or stock-based performance units;
(iii) amend its certificate of incorporation or
by-laws; or
28
(iv) authorize any of, or commit or agree to take any of, the
foregoing actions.
(b) CONDUCT OF BUSINESS BY PARENT. Except for matters
expressly contemplated or permitted by this Agreement, from the date of this
Agreement to the Effective Time, Parent shall not:
(i) (A) declare, set aside or pay any dividends on, or make
any other distributions in respect of, the Parent Ordinary Shares,
other than regular dividends with respect to the Parent Ordinary Shares
with usual declaration, record and payment dates, or (B) split, combine
or reclassify the Parent Ordinary Shares or issue or authorize the
issuance of any other securities in respect of, in lieu of or in
substitution for the Parent Ordinary Shares; or
(ii) authorize any of, or commit or agree to take any of, the
foregoing actions.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. PREPARATION OF FORM F-4 AND PROXY
STATEMENT/PROSPECTUS OR INFORMATION STATEMENT/PROSPECTUS; STOCKHOLDERS
MEETING/WRITTEN CONSENT. (a) If required by Law in order to consummate the
Merger, as soon as practicable following the expiration of the Offer, Parent and
the Company shall prepare and file with the SEC (i) a post-effective amendment
to the Form F-4 for the offer and sale of the Parent ADSs pursuant to the Merger
and in which a proxy statement prepared by the Company and Parent relating to
the Company Stockholders Meeting (as amended or supplemented from time to time,
the "PROXY STATEMENT") or an information statement prepared by the Company and
Parent pursuant to Rule 14c-2 under the Exchange Act (as amended or supplemented
from time to time, the "INFORMATION STATEMENT"), as applicable, which will
contain the information required under Rule 13e-3 under the Exchange Act, will
be included as a prospectus (the "POST-EFFECTIVE AMENDMENT") and (ii) together
with Merger Sub, a Rule 13e-3 Transaction Statement on Schedule 13E-3 with
respect to the Merger (as supplemented or amended, the "SCHEDULE 13E-3"). Each
of the Company and Parent shall notify the other (and each shall also notify the
Special Committee and its counsel) promptly of the receipt of any comments from
the SEC or its staff and of any request by the SEC or its staff for amendments
or supplements to the Post-Effective
29
Amendment, the Proxy Statement, the Information Statement or the Schedule 13E-3
or for additional information and shall supply the other with copies of all
correspondence between it or any of its representatives, on the one hand, and
the SEC or its staff, on the other hand, with respect to the Post-Effective
Amendment, the Proxy Statement, the Information Statement or the Schedule 13E-3.
Each of the Company and Parent shall use its reasonable best efforts to respond
as promptly as practicable to any comments of the SEC with respect thereto. No
filing of, or amendment or supplement to, or correspondence to the SEC or its
staff with respect to, the Post-Effective Amendment, the Proxy Statement, the
Information Statement or the Schedule 13E-3 will be made by either party,
without providing the other party a reasonable opportunity to review and comment
thereon. Each of the Company and Parent shall use its reasonable best efforts to
have the Post-Effective Amendment declared effective under the Securities Act as
promptly as practicable after its filing. The Company will use its reasonable
best efforts to cause the Proxy Statement or Information Statement, as
applicable, to be mailed to holders of the Company's capital stock as promptly
as practicable after the Post-Effective Amendment is declared effective under
the Securities Act. Parent shall also take any action (other than qualifying to
do business in any jurisdiction in which it is not now so qualified or to file a
general consent to service of process) required to be taken under any applicable
state securities laws in connection with the issuance of Parent ADSs pursuant to
the Offer and the Merger, and the Company shall furnish all information
concerning the Company and its stockholders as may be reasonably requested in
connection with any such action and the preparation, filing and/or distribution
of the Proxy Statement, the Information Statement and the Schedule 13E-3. If at
any time prior to the Effective Time any information relating to the Company or
Parent, or any of their respective affiliates, officers or directors, should be
discovered by the Company or Parent which should be set forth in an amendment or
supplement to any of the Post-Effective Amendment, the Proxy Statement, the
Information Statement or the Schedule 13E-3, so that any of such documents would
not include a misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, the party which discovers such information
shall promptly notify the other parties hereto, and an appropriate amendment or
supplement describing such information shall be promptly filed with the SEC and,
to the extent required by Law, disseminated by the Company to holders of the
Company's capital stock.
30
(b) If required by Law in order to consummate the Merger, the
Company shall establish, prior to or as soon as practicable following the date
upon which the Post-Effective Amendment becomes effective, a record date (which
shall be prior to or as soon as practicable following the date upon which the
Post-Effective Amendment becomes effective), and either duly call, give notice
of, convene and hold a meeting of holders of the Company's capital stock (the
"COMPANY STOCKHOLDERS MEETING") or follow all required procedures in soliciting
consents from holders of Company Common Stock, for the purpose of seeking the
Company Stockholder Approval, as applicable. In such event, the Proxy Statement
or the Information Statement, as the case may be, shall include a description of
the recommendations referred to in Section 3.03(b), and neither the Company
Board nor any committee thereof shall withdraw or modify, or propose to withdraw
or modify such recommendations or related approval; PROVIDED, HOWEVER, that the
Company Board or the Special Committee may determine not to make such
recommendations or such recommendations may be withdrawn or modified to the
extent that the Special Committee determines in good faith, after consultation
with outside legal counsel, that such recommendations would be inconsistent with
its fiduciary duties to stockholders of the Company under applicable law.
Without limiting the generality of the foregoing, the Company agrees that its
obligations pursuant to the first sentence of this Section 6.01(b) shall not be
affected by the withdrawal or modification by either the Company Board or the
Special Committee of its approval or recommendation of this Agreement, the Offer
or the Merger.
(c) Notwithstanding the foregoing, if Parent, Merger Sub or
any other subsidiary of Parent (other than the Company or any of its
subsidiaries) shall acquire at least 90% of the outstanding shares of each class
of capital stock of the Company entitled to vote on a merger and if permitted by
Section 253 of the DGCL, at Parent's sole discretion, the parties shall take all
necessary and appropriate action to cause the Merger to become effective as soon
as practicable after the expiration of the Offer without a stockholders meeting
or written consent in accordance with Section 253 of the DGCL (a "SHORT-FORM
MERGER").
(d) Parent shall cause Merger Sub to vote any shares of
Company Common Stock owned by it and not held in the Voting Trust in favor of
the adoption of this Agreement, if applicable.
SECTION 6.02. REASONABLE BEST EFFORTS; NOTIFICATION. Upon the
terms and subject to the conditions set forth in this Agreement, each of the
parties shall use
31
its reasonable best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Offer, the Merger and
the other transactions contemplated hereby, including (i) the obtaining of all
necessary actions or nonactions and Consents from Governmental Entities and the
making of all necessary registrations, declarations and filings (including
filings with Governmental Entities, if any) and the taking of all reasonable
steps as may be necessary to obtain a Consent from, or to avoid an action or
proceeding by, any Governmental Entity, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iii) the preparation of the
Form F-4, the Schedule 13E-3, the Offer Documents and the Schedule 14D-9 and, if
necessary, the Post-Effective Amendment and the Proxy Statement or Information
Statement, (iv) the defending of any lawsuits or other legal proceedings,
whether judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby, including seeking to have
any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed, and (v) the execution and delivery of
any additional instruments necessary to consummate the transactions contemplated
hereby and to fully carry out the purposes of this Agreement. In connection with
and without limiting the foregoing, each of the parties hereto shall (i) take
all action necessary to ensure that no state takeover statute or similar statute
or regulation is or becomes applicable to this Agreement, the Offer, the Merger
or any other transaction contemplated by this Agreement and (ii) if any state
antitakeover statute or similar statute or regulation becomes applicable to this
Agreement, the Offer, the Merger or any other transaction contemplated by this
Agreement, take all action necessary to ensure that the Offer, the Merger and
the other transactions contemplated by this Agreement may be consummated as
promptly as practicable on the terms contemplated by this Agreement.
SECTION 6.03. STOCK OPTIONS; DIRECTORS STOCK. (a) COMPANY
STOCK OPTIONS. As soon as practicable following the date of this Agreement, the
boards of directors (or the appropriate committees thereof) of each of the
Company, the Surviving Corporation and/or the Parent shall adopt such
resolutions or take such other actions as may be necessary or required to effect
the following:
(1) adjust the terms of all outstanding Company Stock Options
to provide that, at the Effective Time (except to the extent the holder
of a Company Stock
32
Option elects otherwise, as provided further herein), all outstanding
Company Stock Options, whether vested or unvested, shall be assumed by
Parent and converted into an option (a "PARENT OPTION") to acquire, on
the same terms and conditions as were applicable under the Company
Stock Option, a number of Parent Ordinary Shares, to be delivered in
the form of Parent ADSs (rounded up to the nearest whole share) in an
amount determined by multiplying (x) the number of shares of Company
Common Stock subject to such Company Stock Option by (y) the number of
Parent ADSs equal to the sum of (A) the Per Share Stock Consideration
plus (B) the number of Parent ADSs obtained by dividing (i) the Per
Share Cash Consideration by (ii) the closing price for a Parent ADS
(the "PARENT CLOSING PRICE") as reported on the NYSE Composite
Transaction Tape (as reported in The Wall Street Journal, Northeastern
edition, or, if not reported thereby, any other authoritative source
chosen by Parent) on the date on which the Effective Time occurs (it
being understood that the Surviving Corporation shall have the right to
acquire the Parent ADSs so deliverable from open-market purchases), at
a price per Parent ADS equal to (A) the aggregate exercise price for
the shares of Company Common Stock otherwise purchasable pursuant to
such Company Stock Option divided by (B) the aggregate number of Parent
ADSs purchasable in accordance with the foregoing (determined without
regard to rounding); PROVIDED that such exercise price shall be rounded
down to the nearest whole cent;
(2) notwithstanding the respective terms of the Company Stock
Options, all outstanding Company Stock Options awarded under the
Company Stock Plans, to the extent that such Options are not already
exercisable, shall become immediately and fully exercisable, pursuant
to the terms of the Company Stock Options, as amended, and the Company
Stock Plans, upon the payment by AXA for shares of Company Common
Stock, validly tendered and not withdrawn, upon expiration of the
initial period of the Offer (or if no shares of Company Common Stock
are tendered pursuant to the Offer, at the Effective Time); provided,
however, that a holder of a Company Stock Option, which is an
"incentive stock option" (as defined in Section 422 of the Code) (such
Option, an "ISO"), shall have the opportunity to elect not to have the
vesting of his or her ISO accelerate, in the event and to the extent
that such acceleration would cause the Company Stock Option to lose its
status as an ISO;
33
(3) notwithstanding anything herein to the contrary, all
Company Stock Options that are ISOs shall be assumed by Parent and
converted into Parent Options pursuant to Section 6.03(a)(1) above;
PROVIDED, HOWEVER, that in the event and to the extent that a holder of
Company Stock Options that are ISOs elects to continue the Parent
Options as ISOs, the adjustments provided herein with respect to any
such Options (or portions thereof) shall be effected pursuant to this
Section 6.03(a) with such changes, if any, that may be necessary in
order to be consistent with Section 424(a) of the Code; and
(4) if and to the extent that a holder of any Company Stock
Options that are not ISOs does not elect to convert all or any portion
of such Company Stock Options into Parent Options, each of such
holder's outstanding Company Stock Options shall, immediately prior to
the Effective Time, be canceled in exchange for a cash payment from the
Surviving Corporation (subject to any applicable withholding taxes)
equal in value to the product of (A) the total number of shares of
Company Common Stock subject to such Company Stock Option and (B) the
excess of the Merger Consideration Value (as defined below) over the
exercise price per share of Company Common Stock subject to such
Company Stock Option; PROVIDED, HOWEVER, that any holder of a Company
Stock Option who is currently eligible to defer his or her annual
compensation for 2001 into the Company Variable Deferred Compensation
Plan for Executives and who elects to receive the foregoing cash
payment may, pursuant to the terms of such deferred compensation plan,
elect to defer receipt of such cash payment into such Company Benefit
Plan. The foregoing cash payment shall be made on the later of (i) the
Effective Time and (ii) if permitted by Law, as soon as practicable
after January 2, 2001. For purposes of this Section 6.03(a), "MERGER
CONSIDERATION VALUE" shall mean, on a per share basis, the sum of (x)
the value of the Per Share Stock Consideration, based on the Parent
Closing Price, plus (y) the Per Share Cash Consideration.
(b) DIRECTORS STOCK. (1) Any outstanding stock options held by
any non-employee directors or former directors (the "DIRECTORS OPTIONS") shall
be treated the same as the Company Stock Options that are not ISOs, as set forth
in Section 6.03(a)(1), above.
(2) With respect to the Company Stock Plan for Directors (the
"DIRECTOR PLAN"), each Deferred Stock unit
34
credited to each participant's Accounts (as such terms are defined in the
Director Plan) shall be converted, effective as of the Effective Time, into the
Per Share Merger Consideration; PROVIDED, HOWEVER, that the Per Share Cash
Consideration shall be deferred into the Company's Variable Deferred
Compensation Plan for Directors. Both the Per Share Stock Consideration and the
Per Share Cash Consideration shall otherwise be distributed in accordance with
the terms of the Director Plan and the Variable Deferred Compensation Plan for
Directors, as applicable, pursuant to the distribution elections previously made
by the participants with respect to their respective Accounts therein.
(c) NOTICES. As soon as practicable after the Effective Time,
the Surviving Corporation shall deliver to the holders of Company Stock Options
appropriate notices setting forth such holders' rights pursuant to the
respective Company Stock Plans and the agreements evidencing the grants of such
Company Stock Options and that such Company Stock Options and agreements shall
be assumed by the Surviving Corporation and shall continue in effect on the same
terms and conditions (subject to the adjustments required by Section 6.03(a)).
(d) MISCELLANEOUS. Prior to the Effective Time, Parent and the
Company shall take all such actions as may be reasonably required to cause any
dispositions of Company Common Stock (including derivative securities with
respect to Company Common Stock) or acquisitions of Parent Ordinary Shares
(including derivative securities with respect to Parent Ordinary Shares)
resulting from the transactions contemplated by this Agreement by each person
who is subject to the reporting requirements of Section 16(a) of the Exchange
Act to be eligible for exemption under Rule 16b-3 promulgated under the Exchange
Act.
SECTION 6.04. INDEMNIFICATION. (a) Parent shall, to the
fullest extent permitted by Law, cause the Surviving Corporation to honor all
the Company's obligations to indemnify (including any obligations to advance
funds for expenses to) the current or former directors or officers of the
Company or any of its subsidiaries (other than DLJ and its subsidiaries) for
acts or omissions by such directors and officers occurring prior to the
Effective Time to the extent that such obligations of the Company or any of its
subsidiaries exist on the date of this Agreement, whether pursuant to the
Company Charter, the Company By-laws, the certificate or articles of
incorporation, by-laws or similar organizational documents of such subsidiaries,
individual indemnity agreements or otherwise, and such obligations
35
shall survive the Merger and shall continue in full force and effect in
accordance with the terms of the Company Charter, the Company By-laws, the
certificate or articles of incorporation, by-laws or similar organizational
documents of such subsidiaries, and such individual indemnity agreements from
the Effective Time until the expiration of the applicable statute of limitations
with respect to any claims against such directors or officers arising out of
such acts or omissions.
(b) For a period of six years from and after the Effective
Time, Parent or the Surviving Corporation shall cause to be maintained in effect
the current policies of directors' and officers' liability insurance maintained
by the Company (provided that Parent may substitute therefor policies with
reputable and financially sound carriers of at least the same coverage and
amounts containing terms and conditions which are no less advantageous and so
long as such substitution results in continuous coverage) with respect to claims
arising from or related to facts or events which occurred at or before the
Effective Time; PROVIDED, HOWEVER, that Parent shall not be obligated to make
annual premium payments for such insurance to the extent such premiums exceed
200% of the annual premiums paid as of the date hereof by the Company for such
insurance (such 200% amount, the "MAXIMUM PREMIUM"). If such insurance coverage
cannot be obtained at all, or can only be obtained at an annual premium in
excess of the Maximum Premium, Parent or the Surviving Corporation shall
maintain the most advantageous policies of directors' and officers' insurance
obtainable for an annual premium equal to the Maximum Premium. The provisions of
the second preceding sentence shall be deemed to have been satisfied if prepaid
policies reasonably approved in writing by Parent have been obtained by the
Company prior to the Effective Time for purposes of this Section 6.04, which
policies provide such directors and officers with coverage for an aggregate
period of six years with respect to claims arising from facts or events that
occurred on or before the Effective Time, including in respect of the
transactions contemplated by this Agreement.
(c) From and after the Effective Time, to the fullest extent
permitted by Law and without limitation on the obligations of Parent or the
Surviving Corporation pursuant to Sections 6.04(a) and (b), Parent shall, and
shall cause the Surviving Corporation to, indemnify, defend and hold harmless
the present and former officers and directors of the Company and its
subsidiaries, and any employee of the Company or its subsidiaries who acts as a
fiduciary under any Company Benefit Plan (each an "INDEMNIFIED PARTY") against
all losses, claims, damages,
36
liabilities, fees and expenses (including attorneys' fees and disbursements),
judgments, fines and amounts paid in settlement (in the case of settlements,
with the approval of the indemnifying party (which approval shall not be
unreasonably withheld or delayed)) (collectively, "LOSSES"), as incurred
(payable monthly upon written request which request shall include reasonable
evidence of the Losses set forth therein) to the extent arising from, relating
to, or otherwise in respect of, any actual or threatened action, suit,
proceeding or investigation, in respect of actions or omissions occurring at or
prior to the Effective Time in connection with such Indemnified Party's duties
as an officer or director or employee of the Company or any of its subsidiaries
to the extent they are based on or arise out of or pertain to the transactions
contemplated by this Agreement; PROVIDED, HOWEVER, that an Indemnified Party
shall not be entitled to indemnification under this Section 6.04(c) for Losses
arising out of actions or omissions by the Indemnified Party constituting (i) an
intentional breach of this Agreement, (ii) criminal conduct or (iii) any
violation of Federal, state or foreign securities laws.
(d) In the event that Parent or the Surviving Corporation or
any of their successors or assigns (i) consolidates with or merges into any
other person and is not the continuing or surviving corporation or entity in
such consolidation or merger or (ii) transfers or conveys all or substantially
all its properties and assets to any person, then, and in each such case, proper
provision shall be made so that the successor and assign of such party assumes
the obligations of such party set forth in this Section 6.04, and in such event
all references to Parent or the Surviving Corporation, as the case may be, in
this Section 6.04 shall be deemed a reference to such successor and assign.
SECTION 6.05. FEES AND EXPENSES. Except as may otherwise be
agreed in writing, all fees and expenses incurred in connection with the Offer,
the Merger and the other transactions contemplated by this Agreement shall be
paid by the party incurring such fees or expenses, whether or not the Offer or
the Merger is consummated.
SECTION 6.06. PUBLIC ANNOUNCEMENTS. Parent and Merger Sub, on
the one hand, and the Company, on the other hand, shall consult with each other
before issuing, and provide each other the opportunity to review and comment
upon, any press release or other public statements with respect to the
transactions contemplated by this Agreement, including the Offer and the Merger,
and shall not issue any such press release or make any such public statement
prior
37
to such consultation, except as may be required by applicable Law, court process
or by obligations pursuant to any listing agreement with any national securities
exchange, domestic or foreign. The parties agree that the initial press releases
to be issued with respect to the transactions contemplated by this Agreement
will be in the form previously agreed to by the parties.
SECTION 6.07. TRANSFER TAXES. All stock transfer, real estate
transfer, documentary, stamp, recording and other similar Taxes (as defined
below in this Section 6.07) (including interest, penalties and additions to any
such Taxes) ("TRANSFER TAXES") incurred by the parties hereto in connection with
the transactions contemplated hereby shall be paid by either Merger Sub or the
Surviving Corporation, and the Company shall cooperate with Merger Sub and
Parent in preparing, executing and filing any Federal, state, local, provincial
and foreign Tax returns, declarations, statements, reports, schedules, forms and
information returns and any amended Tax return relating to Taxes ("TAX RETURNS")
with respect to such Transfer Taxes, including, if reasonably requested,
supplying in a timely manner a complete list of all real property interests held
by the Company that are located in New York State and any information with
respect to such property that is reasonably necessary to complete such Tax
Returns. For purposes of this Agreement, "TAXES" includes all forms of taxation,
whenever created or imposed, and whether of the United States or elsewhere, and
whether imposed by a local, municipal, governmental, state, foreign, Federal or
other Governmental Entity, or in connection with any agreement with respect to
Taxes, including all interest, penalties and additions imposed with respect to
such amounts.
SECTION 6.08. STOCKHOLDER LITIGATION. The Company shall give
Parent the opportunity to participate in the defense or settlement of any
stockholder litigation against the Company and its directors relating to any
transaction contemplated hereby. No such settlement shall be agreed to without
Parent's consent.
SECTION 6.09. AFFILIATES. Promptly following the date of
execution of this Agreement, the Company shall deliver to Parent a letter
identifying all persons (other than members of the Company Board that are
Parent's employees or designees) who, to the Company's knowledge, at the time
this Agreement is submitted to holders of Company Common Stock for the Company
Stockholder Approval, may be deemed to be "affiliates" of the Company for
purposes of Rule 145 under the Securities Act. The Company shall use its
reasonable best efforts to cause each such person (other
38
than members of the Company Board that are Parent's employees or designees) who
is a holder of Company Common Stock following the consummation of the Offer to
deliver to Parent prior to the Closing Date, a written agreement substantially
in the form attached as EXHIBIT B.
SECTION 6.10. LISTING. Parent shall use its reasonable best
efforts to cause the Parent ADSs that are to be issued pursuant to the Offer and
the Merger to be approved for listing on the NYSE, subject to official notice of
issuance, as promptly as practicable after the date hereof, and in any event
prior to the time any shares of Company Common Stock are accepted for exchange
pursuant to the Offer.
SECTION 6.11. MERGER SUB COMPLIANCE. Parent shall cause Merger
Sub to comply with all of its obligations under this Agreement.
SECTION 6.12. TREATMENT OF DLJ. The parties agree that any
breach of representations and warranties by the Company and its subsidiaries in
this Agreement that relates to DLJ and its subsidiaries will not be deemed a
breach of such representations and warranties if, after giving effect to the
consummation of the transactions contemplated by the CSG/DLJ Purchase Agreement,
such breach has not had and would not reasonably be expected to have a Company
Material Adverse Effect.
SECTION 6.13. EMPLOYEE BENEFITS. (a) CONTINUITY AGREEMENTS;
SEVERANCE BENEFIT PLANS AND POLICIES. With respect to any officer or employee of
the Company (or any of its subsidiaries (other than DLJ or its subsidiaries))
(collectively, the "COMPANY EMPLOYEES") who is covered by a Continuity Agreement
referred to in the Disclosure Schedule (a list of which is set forth on Schedule
6.13), severance benefit plan or severance policy, Parent shall, or shall cause
the Surviving Corporation to, honor all such Continuity Agreements, severance
benefit plans and severance policies through December 31, 2002 or, if later,
until such date as may be required pursuant to the terms of any of the foregoing
in effect on the date of this Agreement (except as may be amended as
contemplated in the Disclosure Schedule).
(b) PRE-EXISTING LIMITATIONS; DEDUCTIBLE; SERVICE CREDIT. With
respect to any employee benefit plans of Parent (or any such plans caused to be
established by the Surviving Corporation) in which the Company Employees
participate effective as of the Effective Time (the "New Benefit Plans"), Parent
shall, or shall cause the Surviving Corporation to: (i) waive all limitations as
to pre-existing
39
conditions, exclusions and waiting periods with respect to participation and
coverage requirements applicable to the Company Employees under any New Benefit
Plan in which such Company Employees may be eligible to participate after the
Effective Time, (ii) provide each Company Employee with credit for any
co-payments and deductibles paid during the calendar year of implementation of
such New Benefit Plans (if any) prior to the Effective Time in satisfying any
applicable deductible or out-of-pocket requirements under any welfare New
Benefit Plan in which such Company Employees may be eligible to participate
after the Effective Time, and (iii) recognize all service of the Company
Employees with the Company or any of its subsidiaries for all purposes
(including for purposes of eligibility to participate, vesting credit,
entitlement for benefits and benefit accrual) in any New Benefit Plan in which
such Company Employees may be eligible to participate after the Effective Time,
to the same extent taken into account under a comparable Company Benefit Plan
immediately prior to the Effective Time (except, with respect to benefit
accrual, to the extent that such recognition would result in a duplication of
benefits).
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT
THE MERGER. The respective obligation of each party to effect the Merger is
subject to the satisfaction or, to the extent permitted by applicable Law,
waiver (which, in the case of the Company, shall be determined by the Special
Committee) on or prior to the Closing Date of the following conditions:
(a) STOCKHOLDER APPROVAL. If required by Law in order to
consummate the Merger, the Company shall have obtained the Company Stockholder
Approval.
(b) NO INJUNCTIONS OR RESTRAINTS. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction preventing the consummation of the Merger or the other
transactions contemplated hereby shall be in effect; PROVIDED, HOWEVER, that
prior to asserting this condition each of the parties shall have used its
reasonable best efforts to prevent the entry of any such injunction or other
order and to appeal as promptly as possible any such judgment that may be
entered.
40
(c) EXCHANGE OF SHARES IN THE OFFER. Parent and Merger Sub
shall have accepted for exchange and exchanged all of the shares of Company
Common Stock properly tendered and not withdrawn pursuant to the Offer.
(d) FORM F-4. The Form F-4 and the Post-Effective Amendment,
as the case may be, shall have become effective under the Securities Act and
shall not be the subject of any stop order or proceeding seeking a stop order,
and Parent shall have received all state securities or "blue sky" authorizations
necessary to issue Parent ADSs pursuant to the Merger.
(e) LISTING. The Parent ADSs issuable pursuant to the Merger
shall have been approved for listing on the NYSE, subject to official notice of
issuance.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. TERMINATION. This Agreement may be terminated at
any time prior to the Effective Time, whether before or after receipt of the
Company Stockholder Approval or adoption of this Agreement by the stockholder of
Merger Sub:
(a) by mutual written consent of Parent, Merger Sub and the
Special Committee on behalf of the Company;
(b) by either Parent or the Special Committee on behalf of the
Company:
(i) if the purchase of the shares of Company Common
Stock pursuant to the Offer is not consummated on or before
June 30, 2001 as a result of any of the conditions set forth
in EXHIBIT A not being satisfied on or prior to such date,
unless the failure to consummate the Offer is the result of a
breach of this Agreement by the party seeking to terminate
this Agreement; PROVIDED, HOWEVER, that the passage of such
period shall be tolled for any part thereof during which any
party shall be subject to a nonfinal order, decree, ruling or
action restraining, enjoining or otherwise prohibiting the
consummation of the Offer or the Merger; or
(ii) if any Governmental Entity issues an order,
decree or ruling or takes any other action
41
permanently enjoining, restraining or otherwise prohibiting
the Offer or the Merger and such order, decree, ruling or
other action shall have become final and nonappealable, other
than any such order, decree, ruling or other action of a
Governmental Entity not in the United States, France or the
European Union which does not have a material adverse effect
on Parent or any of its material subsidiaries;
(c) by Parent if the Special Committee withdraws or modifies,
in a manner adverse to Parent or Merger Sub, or proposes to withdraw or
modify, in a manner adverse to Parent or Merger Sub, its approval or
recommendation of this Agreement, the Offer or the Merger or fails to
recommend to the holders of Company Common Stock that they accept the
Offer and give the Company Stockholder Approval;
(d) by the Special Committee on behalf of the Company if the
Special Committee determines that the terms of the Offer and the Merger
are not fair to or in the best interests of the Company and the holders
of Company Common Stock (other than the Affiliate
Shareholders);
(e) by the Special Committee on behalf of the Company if due
to an occurrence or circumstance, not involving a breach by the Company
of its obligations hereunder, which would result in a failure to
satisfy any of the conditions set forth in EXHIBIT A hereto or
otherwise, Parent and Merger Sub shall have terminated the Offer or
permitted the Offer to expire without the exchange of shares of Company
Common Stock thereunder or not commenced the Offer in accordance with
this Agreement; or
(f) by the Special Committee on behalf of the Company if any
representation or warranty of Parent and Merger Sub in this Agreement
that is qualified as to Parent Material Adverse Effect shall not be
true and correct or any such representation and warranty that is not so
qualified shall not be true and correct other than for such failures to
be true and correct that, individually or in the aggregate, have not
had and would not reasonably be expected to have a Parent Material
Adverse Effect, or Parent or Merger Sub fails to perform in any
material respect any of its respective covenants contained in this
Agreement (provided that the Company is not then in breach of any
42
representation, warranty or covenant contained in this
Agreement).
SECTION 8.02. EFFECT OF TERMINATION. In the event of
termination of this Agreement by either the Company or Parent as provided in
Section 8.01, this Agreement shall forthwith become void and have no effect,
without any liability or obligation on the part of Parent, or Merger Sub or the
Company, other than Section 3.08, Section 4.08, Section 6.05, this Section 8.02
and Article IX, which provisions shall survive such termination, and except to
the extent that such termination results from the wilful and material breach by
a party of any agreement set forth in this Agreement.
SECTION 8.03. AMENDMENT. This Agreement may be amended by the
parties but only with the approval of the Special Committee at any time before
or after receipt of the Company Stockholder Approval or the adoption of this
Agreement by the stockholder of Merger Sub; PROVIDED, HOWEVER, that after
receipt of the Company Stockholder Approval or the adoption of this Agreement by
the stockholder of Merger Sub, there shall be made no amendment that by Law
requires further approval by such stockholders without the further approval of
such stockholders. Subject to the preceding sentence, this Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties.
SECTION 8.04. EXTENSION; WAIVER. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of any
of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained in this Agreement
or in any document delivered pursuant to this Agreement or (c) subject to the
proviso of Section 8.03 and applicable Law, waive compliance with any of the
agreements or conditions contained in this Agreement; PROVIDED, HOWEVER, that
any extension or waiver pursuant to this Section 8.04 that adversely affects the
holders of shares of Company Common Stock shall require the approval of the
Special Committee. Subject to the preceding sentence, any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
SECTION 8.05. PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION
OR WAIVER. A termination of this Agreement
43
pursuant to Section 8.01, an amendment of this Agreement pursuant to Section
8.03 or an extension or waiver pursuant to Section 8.04 shall, in order to be
effective, require in the case of Parent, Merger Sub or the Company, action by
its Board of Directors or Management Board (and, in the case of the Company,
action by the Special Committee), as applicable, or to the extent permitted by
applicable Law, the duly authorized designee of its Board of Directors or
Management Board (and, in the case of the Company, the Special Committee), as
applicable.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time. This Section 9.01 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective Time.
SECTION 9.02. NOTICES. All notices, requests, claims, demands
and other communications under this Agreement shall be in writing and shall be
deemed given upon receipt by the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Parent or Merger Sub, to
AXA
00, xxxxxx Xxxxxxxx
00000 Xxxxx
Xxxxxx
Attention: General Counsel
WITH A COPY TO:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
(b) if to the Company, to
AXA Financial, Inc.
44
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
WITH A COPY TO EACH OF:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
AND
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
SECTION 9.03. DEFINITIONS. For purposes of this Agreement:
An "AFFILIATE" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person.
A "COMPANY BENEFIT PLAN" means any collective bargaining
agreement or any bonus, pension, profit sharing, defined compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
medical or other plan arrangement or understanding (whether or not legally
binding) providing benefits to any current or former employee, officer or
director of the Company or any of its subsidiaries.
A "MATERIAL ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE" on a
party means a material adverse effect or change on the business, financial
condition or results of operations of such party and its subsidiaries, taken as
a whole, in each case excluding those effects and changes to the extent that
they result from (i) any change in the economy or the financial or securities
markets generally or in the industry of the party or any of its subsidiaries
generally, other than any such effect or change that has a materially more
adverse effect on such party or its subsidiaries than that experienced by
similarly situated
45
companies and (ii) solely in the case of a Company Material Adverse Effect, the
announcement of this Agreement or the consummation of the transactions
contemplated hereby.
A "PERSON" means any individual, firm, corporation,
partnership, company, limited liability company, trust, joint venture,
association, Governmental Entity or other entity.
A "SUBSIDIARY" of any person means another person, an amount
of the voting securities or other voting ownership or voting partnership
interests of which or general partnership in which is sufficient to elect at
least a majority of its Board of Directors or other governing body (or, if there
are no such voting interests, 50% or more of the equity interests of which) is
owned directly or indirectly by such first person, excluding, for purposes of
the representations, warranties and covenants of the Company contained in this
Agreement (but not the definition of Company Material Adverse Effect), any
subsidiary of the Company the majority of assets of which are "general account"
or "separate account" investment assets (as referred to in the Company SEC
Documents).
SECTION 9.04. INTERPRETATION. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation". Any references to times of day shall
mean New York City time.
SECTION 9.05. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule or
Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
46
SECTION 9.06. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
SECTION 9.07. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES.
This Agreement (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the transactions contemplated hereby and (b) except for the
provisions of Article II and Section 6.04, are not intended to confer upon any
person other than the parties any rights or remedies.
SECTION 9.08. GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
SECTION 9.09. ASSIGNMENT. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties
without the prior written consent of the other parties, except that (a) Merger
Sub may assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to Parent or to any direct or indirect wholly
owned subsidiary of Parent, and (b) Parent may assign, in its sole discretion,
in whole or in part, the right to purchase and deliver payment for shares of
Company Common Stock tendered pursuant to the Offer to Merger Sub or to any
other direct or indirect wholly owned subsidiary of Parent, but in either case
no such assignment shall relieve Merger Sub or Parent, as applicable, of any of
its respective obligations under this Agreement. Any purported assignment
without such consent shall be void. Subject to the preceding sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 9.10. JURISDICTION. Each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any court of the
United States located in the State of Delaware or of any Delaware state court in
the event any dispute arises out of this Agreement or the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (c) agrees that it will not bring any action
47
relating to this Agreement or the transactions contemplated by this Agreement in
any court other than a court of the United States located in the State of
Delaware or a Delaware state court.
48
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have
duly executed this Agreement, all as of the date first written above.
AXA,
by
/s/ Henri De Castries
----------------------------------
Name: Henri de Castries
Title: Chairman of the
Management Board
AXA MERGER CORP.,
by
/s/ Xxxxxx De La Martiniere
--------------------------------
Name: Xxxxxx de La Martiniere
Title:Chief Executive Officer
AXA FINANCIAL, INC.,
by
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title:Vice Chairman and Chief
Financial Officer
EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer but subject in all
respects to Article I of this Agreement, Parent and Merger Sub shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating
to Parent's and Merger Sub's obligation to deliver payment for or return
tendered shares of Company Common Stock promptly after the termination or
withdrawal of the Offer), to deliver any payment for any shares of Company
Common Stock tendered pursuant to the Offer UNLESS (a) the transactions
contemplated by the CSG/DLJ Purchase Agreement shall have been consummated
(provided that in no event shall this condition be waivable by Parent and Merger
Sub without the approval of the Special Committee on behalf of the Company) and
(b) the Parent ADSs issuable pursuant to the Offer have been approved for
listing on the NYSE, subject to official notice of issuance. Furthermore,
notwithstanding any other term of the Offer but subject in all respects to
Article I of this Agreement, Parent and Merger Sub shall not be required to
commence the Offer, accept for payment or, subject as aforesaid, deliver any
payment for any shares of Company Common Stock not theretofore accepted for
payment or paid for, and may terminate or amend the Offer, with the consent of
the Special Committee on behalf of the Company or if, at any time on or after
the date of this Agreement and before the acceptance of such shares for payment
or the payment therefor, any of the following conditions exists:
(a) the Form F-4 has not been declared effective under the
Securities Act by the SEC or is the subject of a stop order or
proceedings seeking a stop order, or Parent has not received any
material state securities or "blue sky" authorizations necessary to
issue Parent ADSs pursuant to the Offer;
(b) any statute, rule, regulation, legislation, judgment,
order or injunction shall be enacted, entered, enforced, promulgated,
amended or issued with respect to, or deemed applicable to, or any
consent or approval withheld with respect to, (i) Parent, the Company
or any of their respective subsidiaries or (ii) the Offer, the Merger
or any other transaction contemplated by this Agreement, in each of the
cases of clause (i) and (ii), by any Governmental Entity (other than
any such statute, rule, regulation, legislation, judgment, order or
injunction of a Governmental Entity not in the United States, France or
the European Union which does not have a material adverse effect on
Parent or any of its material subsidiaries) that results,
2
directly or indirectly, in (w) a restraint or prohibition on the making
or consummation of the Offer or the Merger or any other transaction
contemplated by this Agreement or any damages in relation thereto that
are material in relation to the Company and its subsidiaries taken as
whole, (x) a prohibition or limitation on the ownership or operation by
the Company, Parent or any of their respective subsidiaries of any
material portion of the business or assets of the Company and its
subsidiaries or Parent and its subsidiaries, in each case taken as a
whole, or the requirement that the Company, Parent or any of their
respective subsidiaries dispose of or hold separate any material
portion of the business or assets of the Company and its subsidiaries
or Parent and its subsidiaries, in each case taken as a whole, as a
result of the Offer, the Merger or any other transaction contemplated
by this Agreement, (y) the imposition of material limitations on the
ability of Parent or Merger Sub to acquire or hold, or exercise full
rights of ownership of, any shares of Company Common Stock, including
the right to vote the Company Common Stock acquired by it on all
matters properly presented to the stockholders of the Company (other
than pursuant to the terms of the Voting Trust Agreement) or (z) a
prohibition on Parent or any of its subsidiaries effectively
controlling in any material respect the business or operations of the
Company and its subsidiaries, taken as a whole;
(c) the Special Committee shall have withdrawn or modified, or
proposed to withdraw or modify, in a manner adverse to Parent or Merger
Sub, its approval or recommendation of this Agreement, the Offer or the
Merger or failed to recommend to the holders of Company Common Stock
that they accept the Offer and, to the extent applicable, give the
Company Stockholder Approval;
(d) any representation and warranty of the Company in this
Agreement that is qualified as to Company Material Adverse Effect shall
not be true and correct, and any such representation and warranty that
is not so qualified shall not be true and correct other than for such
failures to be true and correct that, individually or in the aggregate,
have not had and would not reasonably be expected to have a Company
Material Adverse Effect, in each case as of such time, except to the
extent such representation and warranty expressly relates to an earlier
date (in which case on and as of such earlier date); PROVIDED, HOWEVER,
that any breach
3
of representations and warranties by the Company and its subsidiaries
in this Agreement that relates to DLJ and its subsidiaries will not be
deemed a breach of such representations and warranties if, after giving
effect to the consummation of the transactions contemplated by the
CSG/DLJ Purchase Agreement, such breach has not had and would not
reasonably be expected to have a Company Material Adverse Effect;
(e) the Company shall have failed to perform in any material
respect any obligation or to comply in any material respect with any
agreement or covenant, of the Company required to be performed or
complied with by it under this Agreement; or
(f) this Agreement shall have been terminated in accordance
with its terms;
which, in the sole and reasonable judgment of Parent and Merger Sub, in any such
case, makes it inadvisable to proceed with such commencement, acceptance for
payment or delivery of payment.
The foregoing conditions are for the sole benefit of Parent
and Merger Sub and may be asserted by Parent and Merger Sub or may be waived by
Parent and Merger Sub in whole or in part at any time and from time to time in
their sole discretion, except in the case of the condition set forth in clause
(a) of the first paragraph of this EXHIBIT A the waiver of which requires the
approval of the Special Committee on behalf of the Company. The failure by
Parent or Merger Sub at any time to exercise any of the foregoing rights shall
not be deemed a waiver of any such right, the waiver of any such right with
respect to particular facts and circumstances shall not be deemed a waiver with
respect to any other facts and circumstances and each such right shall be deemed
an ongoing right that may be asserted at any time and from time to time.
EXHIBIT B
FORM OF COMPANY AFFILIATE LETTER
Dear Sirs:
The undersigned refers to the Agreement and Plan of Merger
(the "MERGER AGREEMENT") dated as of October 17, 2000 among AXA, a societe
anonyme organized under the laws of The Republic of France ("PARENT"), AXA
MERGER CORP., a Delaware corporation and a wholly owned subsidiary of Parent
("MERGER SUB"), and AXA Financial, Inc., a Delaware corporation (the "COMPANY").
Capitalized terms used but not defined in this letter have the meanings give
such terms in the Merger Agreement.
The undersigned, a holder of shares of Company Common Stock,
is entitled to receive in connection with the Merger Parent ADSs. The
undersigned acknowledges that the undersigned may be deemed an "affiliate" of
the Company within the meaning of Rule 145 ("RULE 145") promulgated under the
Securities Act, although nothing contained herein should be construed as an
admission of such fact.
If in fact the undersigned were an affiliate under the
Securities Act, the undersigned's ability to sell, assign or transfer the Parent
ADSs received by the undersigned in exchange for any shares of Company Common
Stock pursuant to the Merger may be restricted unless such transaction is
registered under the Securities Act or an exemption from such registration is
available. The undersigned (i) understands that such exemptions are limited and
that Parent is not under any obligation to effect any such registration and (ii)
has obtained advice of counsel as to the nature and conditions of such
exemptions, including information with respect to the applicability to the sale
of such securities of Rules 144 and 145(d) promulgated under the Securities Act
(as such Rules may be amended from time to time).
The undersigned hereby represents to and covenants with Parent
that the undersigned will not sell, assign or transfer any of the Parent ADSs
received by the undersigned in exchange for shares of Company Common Stock
pursuant to the Merger except (i) pursuant to an effective registration
statement under the Securities Act, (ii) for sales, transfers or other
dispositions made in conformity with the provisions of Rule 145 or (iii) in a
transaction that, in the opinion of independent counsel reasonably satisfactory
to Parent or as described in a "no-action" or interpretive letter from the Staff
of the SEC, is not required to be registered under the Securities Act.
2
In the event of a sale or other disposition by the undersigned
pursuant to Rule 145, of Parent ADSs received by the undersigned pursuant to the
Merger the undersigned will supply Parent with evidence of compliance with such
Rule, in the form of a letter in the form of Annex I hereto and the opinion of
counsel or no-action letter referred to above. The undersigned understands that
Parent may instruct its transfer agent to withhold the transfer of any Parent
ADSs disposed of by the undersigned, but that upon receipt of such evidence of
compliance the transfer agent shall effectuate the transfer of the Parent ADSs
sold as indicated in the letter.
The undersigned acknowledges and agrees that (i) the Parent
ADSs issued to the undersigned will all be in certificated form and (ii)
appropriate legends will be placed on certificates representing Parent ADSs
received by the undersigned pursuant to the Merger or held by a transferee
thereof, which legends will be removed by delivery of substitute certificates
upon receipt of an opinion in form and substance reasonably satisfactory to
Parent from independent counsel reasonably satisfactory to Parent to the effect
that such legends are no longer required for purposes of the Securities Act.
The undersigned acknowledges that the undersigned has
carefully read this letter and understands the requirements hereof and the
limitations imposed upon the distribution, sale, transfer or other disposition
of Parent ADSs.
Very truly yours,
Dated:
ANNEX I
TO EXHIBIT B
AXA:
On , the undersigned sold the securities of AXA ("PARENT")
described below in the space provided for that purpose (the "SECURITIES"). The
Securities were received by the undersigned in connection with the merger of AXA
Merger Corp., a subsidiary of Parent, with and into AXA Financial, Inc.
Based upon the most recent report or statement filed by Parent
with the Securities and Exchange Commission, the Securities sold by the
undersigned were within the prescribed limitations set forth in Rule 144(e)
promulgated under the Securities Act of 1933, as amended (the "SECURITIES ACT").
The undersigned hereby represents that the Securities were
sold in "brokers' transactions" within the meaning of Section 4(4) of the
Securities Act or in transactions directly with a "market maker" as that term is
defined in Section 3(a)(38) of the Securities Exchange Act of 1934, as amended.
The undersigned further represents that the undersigned has not solicited or
arranged for the solicitation of orders to buy the Securities, and that the
undersigned has not made any payment in connection with the offer or sale of the
Securities to any person other than to the broker who executed the order in
respect of such sale.
Very truly yours,
Dated:
Description of Securities:
EXHIBIT C
VOTING AGREEMENT dated as of October 17,
2000 (this "Agreement"), by Xxxxxx Xxxxxx and Xxxxxxx
Xxxxxxx acting as Voting Trustees under a Voting
Trust Agreement dated as of May 12, 1992, as amended
by an amendment thereto dated January 22, 1997 (as
amended, the "Voting Trust Agreement"), among AXA and
the voting trustees (the "Voting Trustees") named
therein, to and for the benefit of AXA Financial,
Inc., a Delaware corporation ("AXF").
WHEREAS, concurrently with the execution of this Agreement, AXA, a
societe anonyme organized under the laws of France ("AXA"), AXA Merger Corp., a
Delaware corporation and wholly owned subsidiary of AXA, and AXF are entering
into an Agreement and Plan of Merger (the "Merger Agreement") dated as of the
date hereof relating to the acquisition by AXA of the minority interests in AXF.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement.
WHEREAS, according to the terms of the Merger Agreement, the
Acquisition will be structured as a joint tender offer by AXA and AXA Merger
Corp. followed by a merger of AXA Merger Corp. with and into AXF (the "Merger").
WHEREAS, the Merger may have to be approved by a majority of the
outstanding stock of AXF entitled to vote thereon.
WHEREAS, pursuant to the Voting Trust Agreement, AXA has deposited into
a voting trust (the "Voting Trust") the shares of capital stock of AXF
beneficially owned by AXA and certain of its affiliates.
WHEREAS, pursuant to the terms of the Voting Trust Agreement, the
Voting Trustees acting in accordance with Section 3 of the Voting Trust
Agreement have the right and power to exercise all voting rights with respect to
the capital stock of AXF deposited in the Voting Trust.
WHEREAS, Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx, together with Xxxxx xx
Xxxxxxxx-Tonnerre, are the Voting Trustees under the Voting Trust Agreement.
WHEREAS, AXF has requested the undersigned Voting Trustees to agree,
and, the undersigned Voting Trustees are willing to agree, to take all actions
required under the Voting Trust Agreement in order to cause all shares of
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capital stock of AXF held in the Voting Trust as of the date of the relevant
vote to be voted in favor of the adoption of the Merger Agreement, if
applicable.
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree as follows:
SECTION 1. VOTING OF AXF SHARES. Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx, as
Voting Trustees under the Voting Trust Agreement, hereby agree that they will
take all actions required under the Voting Trust Agreement in order to cause all
shares of capital stock of AXF held in the Voting Trust as of the date of the
relevant vote to be voted, in any action by written consent of the stockholders
of AXF or at the Company Stockholders Meeting, in favor of the adoption of the
Merger Agreement.
SECTION 2. TERMINATION. This Agreement will terminate upon the earlier
to occur of (a) the Effective Time and (b) the termination of the Merger
Agreement in accordance with the terms thereof. No such termination of this
Agreement shall relieve any party hereto from any liability for any breach of
this Agreement prior to termination.
SECTION 3. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise, by any of the parties hereto without the prior written consent of the
other parties hereto. Any purported assignment in violation of this Section 3
shall be void. Subject to the preceding sentences of this Section 3, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and assigns.
XXXXXX 0. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
SECTION 5. JURISDICTION. Each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any court of the United States
located in the State of Delaware or of any Delaware state court in the event any
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dispute arises out of this Agreement or the transactions contemplated by this
agreement, (b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (c)
agrees that it will not bring any action relating to this Agreement in any court
other than a court of the United States located in the State of Delaware or a
Delaware state court.
SECTION 6. HEADINGS. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 7. AMENDMENTS. This Agreement may be amended or modified, and
the terms and conditions hereof may be waived, only by a written instrument
signed by the parties hereto or, in the case of a waiver, by each party waiving
compliance.
SECTION 8. COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
AXA FINANCIAL, INC.
By
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Name:
Title:
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Name: Xxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxxx
