EXHIBIT 9.2
[COMPOSITE CONFORMED COPY]
VOTING TRUST AGREEMENT dated as of May 12,
1992, by and among AXA, a corporation organized
under the laws of France ("AXA"), and each of the
persons designated at the end of this Agreement as
Voting Trustees (collectively with any successors
appointed pursuant hereto, the "Voting Trustees"),
as amended by AMENDMENT NO. 1 dated as of January
22, 1997.
WITNESSETH:
WHEREAS, on July 18, 1991, AXA invested $1 billion in The Equitable
Life Assurance Society of the United States, a New York mutual life insurance
company ("The Equitable"), by purchasing a secured note (the "Secured Note") in
the principal amount of $750 million and a surplus note (the "Surplus Note") in
the principal amount of $250 million from The Equitable;
WHEREAS, The Equitable proposes to convert from a mutual life
insurance company to a stock life insurance company that is a wholly owned
subsidiary of The Equitable Companies Incorporated, a Delaware corporation (the
"Company"), pursuant to The Equitable's Plan of Reorganization under Section
7312 of the New York Insurance Law, as amended (as so amended, the "Plan");
WHEREAS, upon the terms and subject to the conditions set forth in
the Investment Agreement dated as of July 18, 1991, among The Equitable, the
Company and AXA, as amended (as so amended, the "Investment Agreement"), the
Secured Note and the Surplus Note will be exchanged for shares of the Common
Stock, par value $.0l per share, of the Company ("Company Common Stock") and,
under certain circumstances, preferred stock of the Company;
WHEREAS, in connection with obtaining the approval of the
Superintendent of Insurance of the State of New York (the "Superintendent") of
the Application of AXA, Midi Participations, Finaxa, AXA Assurances I.A.R.D.
Mutuelle, AXA Assurances Vie Mutuelle, Uni Europe Assurance Mutuelle, Alpha
Assurances Vie Mutuelle and La Nouvelle Mutuelle Assurance for approval of the
acquisition of control of The Equitable and Equitable Variable Life Insurance
Company ("EVLICO"), AXA has agreed to ensure that certain indirect shareholders
of AXA cannot exercise control over the Company, The Equitable or EVLICO by
establishing a voting trust (the "Trust") as provided herein; and
WHEREAS, pursuant to the Trust, except for all voting rights with
respect to the Shares (as hereinafter defined) which will be vested in the
Voting Trustees, the holders of Voting Trust Certificates issued hereunder will
remain the beneficial owners of all Shares.
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and conditions contained herein, the parties hereto agree as follows:
1. ISSUANCE AND TRANSFER OF SHARES TO VOTING TRUSTEES.
(a) AXA shall promptly deposit, or shall cause its
Subsidiaries (as defined in the Investment Agreement) to promptly deposit, with
the Voting Trustees, as trustees of the Trust, certificates for all the shares
of Company Common Stock and of Convertible Preferred Stock and other Preferred
Stock (each as defined in the Investment Agreement) to be issued on and after
the Effective Date (as defined in the Plan) in exchange for the Secured Note and
the Surplus Note pursuant to the Investment Agreement (such shares, together
with any shares deposited with the Voting Trustee pursuant to subparagraph (b)
of this Paragraph 1 or any other provision of this Agreement, are hereinafter
referred to as the "Shares").
(b) In the event that AXA, any Investor Related Party (as
defined in the Standstill and Registration Rights Agreement dated as of July 18,
1991, among the Company, The Equitable and AXA, as amended (as so amended, the
"Standstill Agreement")) or any other holder of a Voting Trust Certificate
acquires, during the term of the Trust, additional shares of Company Common
Stock, Convertible Preferred Stock, Other Preferred Stock or any other stock of
the Company having voting powers (as defined in Paragraph 22 hereof), AXA or
such other holder shall promptly deposit, or AXA shall cause such Investor
Related Party to promptly deposit, certificates for such additional shares with
the Voting Trustees. Notwithstanding the foregoing, no person shall be required
to deposit, and AXA shall not be required to cause any person to deposit, any
shares of stock acquired by such person under circumstances in which, had the
stock so acquired constituted Voting Securities (as defined in the Standstill
Agreement), the acquisition would have been permitted under Section. 2.2(a)(v)
of the Standstill Agreement. No person other than AXA, any holder of Voting
Trust Certificates or any Investor Related Party may deposit any shares of stock
with the Voting Trustees.
(c) All certificates for shares deposited with the Voting
Trustees pursuant to this Agreement shall be duly endorsed or accompanied by
duly executed stock powers or other instruments of transfer. Such certificates
shall be surrendered by the Voting Trustees to the Company for cancellation in
exchange for the issuance by the Company, following the filing of this Agreement
in the registered office of the Company in the State of Delaware pursuant to
Paragraph 26 hereof, to the Voting Trustees of new stock certificates registered
in the name of the Voting Trustees, as trustees of the Trust. Upon receipt by
them of certificates for Shares pursuant to subparagraph (a) or (b) of this
Paragraph 1, the Voting Trustees shall, issue and deliver to AXA, such Investor
Related Party or such other holder, as applicable, Voting Trust Certificates in
the form set forth in Paragraph 14 hereof evidencing the number and class of
Shares so deposited.
(d) In the event AXA is required to deliver or cause to be
delivered shares of Company Common Stock to the Company pursuant to Section
1.2(b)
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of the Investment Agreement, AXA shall so notify the Voting Trustees and the
Voting Trustees shall give written notice to the holders of the Voting Trust
Certificates of the number of shares of Company Common Stock so required to be
delivered to the Company. The holders of the Voting Trust Certificates shall
promptly deliver to the Voting Trustees Voting Trust Certificates representing
the number of shares of Company Common Stock to be so delivered, on a pro rata
basis, and the Voting Trustees shall deliver the required shares to the Company.
Following the delivery of such shares to the Company, the Voting Trustees shall
issue and deliver to the holders thereof Voting Trust Certificates for the
balance of the Shares that were represented by the surrendered Voting Trust
Certificates.
2. VOTING TRUSTEES.
(a) There shall be at all times three Voting Trustees
hereunder, subject to any vacancy pending the appointment of a successor Voting
Trustee under the circumstances contemplated below. Any Voting Trustee (and any
successor Voting Trustee) may at any time resign by notifying AXA and the other
Voting Trustees in writing of such resignation, which shall take effect ten days
thereafter or upon the prior acceptance thereof by the other Voting Trustees.
Upon the death, incapacity, resignation or disqualification (as described below)
of any Voting Trustee, AXA shall appoint promptly a successor Voting Trustee. No
person shall be so appointed as a successor Voting Trustee unless such person
(i) is a member of the Conseil d'Administration of AXA or, if at any time AXA
does not have a Conseil d'Administration, a member of either the Supervisory
Board of AXA or the Executive Board of AXA; and (ii) is not a member of the
Board of Directors or the equivalent governing body or an officer or employee of
Assicurazioni Generali S.p.A. ("Generali") or of Compagnie Financiere de Paribas
("Paribas") or any affiliate of either of them (it being understood that being a
member of the Board of Directors or equivalent governing body or an officer or
employee of Midi Participations or Finaxa or any subsidiary of either of them
shall not of itself cause a person to nor satisfy this requirement) (the
requirements set forth in clauses (i) and (ii) of this sentence being referred
to herein as the "Qualifications"). Any original Voting Trustee shall be
disqualified from serving as a Voting Trustee effective immediately upon such
Voting Trustee no longer being a member of the Conseil d'Administration of AXA
or, unless AXA and the holders of Voting Trust Certificates so agree and the
prior approval of the Superintendent is obtained, upon such Voting Trustee
obtaining a position referred to in clause (ii) of the preceding sentence (other
than a position referred to in the parenthetical relating to Midi Participations
and Finaxa and their subsidiaries in such clause (ii)), unless such Voting
Trustee held such position on the date of this Agreement. In addition, any
successor Voting Trustee shall be disqualified from serving as a Voting Trustee
effective immediately upon the occurrence of any event causing such successor
Voting Trustee to no longer meet the Qualifications. Upon the disqualification
of any Voting Trustee (or any successor Voting Trustee), such Voting Trustee
shall immediately cease to be a Voting Trustee. All appointments of Voting
Trustees shall be subject to the prior approval of the Superintendent. The
Voting Trustees shall promptly notify the holders of Voting Trust Certificates
of any such appointment.
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(b) Any successor Voting Trustee appointed as herein provided
shall indicate his acceptance of such appointment by signing a counterpart of
this Agreement and upon the filing by the Voting Trustees of such counterpart at
the registered office of the Company in the State of Delaware such successor
shall be vested with all the rights, powers, duties and immunities herein
conferred upon the Voting Trustees as though such successor had been originally
a party to this Agreement as a Voting Trustee.
(c) Subject to subparagraph (a) of this Paragraph 2 and to the
next sentence of this subparagraph (c), nothing contained in this Agreement
shall preclude any Voting Trustee from acting as a director, officer or employee
of the Company or any affiliate thereof, nor from purchasing, selling, owning,
holding or dealing in shares of stock of the Company or any affiliate thereof,
contracting with the Company or any affiliate thereof, or being pecuniarily
interested in any transaction to which the Company or any affiliate thereof may
be a party or in which any of them may in any way be interested, as fully as
though such person were not a Voting Trustee. Notwithstanding the foregoing, the
Voting Trustees shall not take any action described in the preceding sentence if
doing so would interfere with the purposes of this Agreement or with the
fulfillment of their duties hereunder, and in particular their duties under
Paragraph 4(c) hereof.
3. ACTION BY VOTING TRUSTEES.
The Voting Trustees may act by a unanimous written consent signed by
all the Voting Trustees or by the affirmative vote of at least two Voting
Trustees at a meeting called by any Voting Trustee upon two days' notice to the
other Voting Trustees, unless such notice is waived by each Voting Trustee not
receiving such notice. Two Voting Trustees shall constitute a quorum for the
transaction of business at a meeting thereof. The Voting Trustees shall have the
power to designate one Voting Trustee to execute certificates and other
documents on behalf of all of them in furtherance of their collective decisions.
The Voting Trustees may, from time to time, adopt and/or amend their own rules
of procedure, and shall record and keep records of all their proceedings at
their office.
4. RIGHTS AND POWERS OF VOTING TRUSTEES.
(a) The Voting Trustees shall possess and be entitled to
exercise, subject to the provisions hereof and the Restated Certificate of
Incorporation and By-laws of the Company and applicable law, all the rights and
powers of registered owners of the Shares as long as they are subject to the
Trust, including, but without limitation, the right and power (i) to vote and
exercise all other rights with respect to the Shares, either in person or by
proxy, on every matter, for which the Shares may be voted, or to give written
consent in lieu of voting thereon, (ii) to waive notice of any regular or
special meeting of stockholders of the Company, (iii) to call meetings of
stockholders of the Company and (iv) to exercise all other voting rights and
powers pertaining to
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ownership of the Shares; it being expressly stipulated that no voting right
shall pass to others by or under the Voting Trust Certificates, under this
Agreement or by or under any other agreement express or implied, other than any
proxy granted by the Voting Trustees with respect to the Shares. Notwithstanding
the foregoing, the Voting Trustees agree that, in voting any Voting Securities
(as defined in the Standstill Agreement) deposited with them, they will comply
with all of the requirements of Section 4.1(a) of the Standstill Agreement
applicable to AXA with respect to the voting of Voting Securities owned by AXA,
and that the Voting Trustees will not take any action not permitted to be taken
by AXA pursuant to such Section 4.1(a), in each case until the termination of
such Section 4.1(a).
(b) The Voting Trustees are authorized to become parties to or
prosecute or defend or intervene in any suits or legal proceedings in their
capacity as stockholders of the Company, and AXA and the holders from time to
time of the Voting Trust Certificates agree to hold the Voting Trustees harmless
from any action or omission by any of the Voting Trustees in any such suit or
legal proceeding.
(c) The duties of the Voting Trustees under this Agreement
shall include exercising their powers under this Agreement with a view to
ensuring that certain indirect shareholders of AXA do not exercise control over
the Company, The Equitable or EVLICO, as contemplated by the fourth "WHEREAS"
clause of this Agreement. Subject to the preceding sentence, in exercising the
rights and powers described in subparagraph (a) above, the Voting Trustees shall
act in good faith as reasonably prudent business persons to protect the
legitimate economic interests of the holders of Voting Trust Certificates in the
Company.
5. DIVIDENDS.
(a) The Voting Trustees shall instruct the Company to pay all
dividends and distributions upon the Shares deposited with the Voting Trustees,
other than any dividend or distribution paid in shares of stock of the Company
having voting powers, directly to the holders of the Voting Trust Certificates.
Upon such instructions being given by the Voting Trustees to the Company, all
liability of the Voting Trustees with respect to such dividends and
distributions shall cease, except that the Voting Trustees shall be obligated to
pay to the holders any dividend or distribution paid by the Company to the
Voting Trustees in contravention of the instructions given by the Voting
Trustees. All such dividends and distributions shall be paid to such holders
ratably, in accordance with the number and class of Shares represented by their
respective Voting Trust Certificates and in no event shall the Voting Trustees
accumulate or reinvest any such dividends or distributions.
(b) If any dividend or distribution in respect of the Shares
deposited with the Voting Trustees is paid, in whole or in part, in shares of
stock of the Company having voting powers, the Voting Trustees shall hold,
subject to the terms of this Agreement, the certificates for such shares that
are received by them on account of such dividend or distribution, and the holder
of each Voting Trust Certificate representing
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Shares on which such dividend or distribution has been paid shall be entitled to
receive a Voting Trust Certificate issued under this Agreement for the number
and class of Shares so paid with respect to the Shares represented by such
Voting Trust Certificate.
(c) Holders of Voting Trust Certificates entitled to receive
the dividends or distributions, or voting Trust Certificates in respect thereof,
described in this Paragraph 5 shall be those holders registered as such on the
transfer books of true Voting Trustees at the close of business on the day fixed
by the Company for the taking of a record to determine those holders of its
stock entitled to receive such dividends or distributions.
6. SUBSCRIPTION RIGHTS.
In case any stock or other securities of the Company are offered for
subscription to the holders of Shares deposited hereunder, the Voting Trustees,
promptly upon receipt of notice of such offer, shall mail a copy thereof to each
of the holders of the Voting Trust Certificates. If the subscription offer does
not consist of stock having voting powers, the holders of Voting Trust
Certificates shall be entitled to subscribe directly in proportion to their
interests, as shown by the transfer books of the Voting Trustees, and the Voting
Trustees shall take such actions as shall be requested by such holders in order
to facilitate such subscription. If the subscription offer consists of stock
having voting powers, then upon receipt by the Voting Trustees on or before the
last day fixed by the Company for subscription and payment of a request from any
such holder of a Voting Trust Certificate to subscribe for shares of such stock
on its behalf, accompanied by the sum of money required to pay for such stock,
the Voting Trustees shall make such subscription and payment. Upon receiving
from the Company the certificates for stock so subscribed for, the Voting
Trustees shal1 issue to such holder a Voting Trust Certificate in respect
thereof.
7. DISSOLUTION OF THE COMPANY.
In the event of the dissolution or total or partial liquidation of
the Company, whether voluntary or involuntary, the Voting Trustees shall
instruct the Company to make any distribution of moneys, securities, rights or
property in respect of the shares deposited with the Voting Trustees directly to
the holders of Voting Trust Certificates in proportion to their interests, as
shown by the transfer books of the Voting Trustees, and the Voting Trustees
shall distribute to such holders any distribution received by the Voting
Trustees in contravention of such instructions. In no event shall the Voting
Trustees accumulate or reinvest any such moneys, securities, rights or property.
8. REORGANIZATION OF THE COMPANY.
In the event the Company is merged into or consolidated with another
corporation, or all or substantially all of the assets of the Company are
transferred to another corporation, then in connection with such merger,
consolidation or transfer the
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term "Company" for all purposes of this Agreement shall be deemed to include
such successor corporation, and the Voting Trustees shall receive and hold under
this Agreement any stock of such successor corporation having voting powers
received on account of the ownership, as voting Trustees hereunder, of the
shares held hereunder prior to such merger, consolidation or transfer. Voting
Trust Certificates issued and outstanding under this Agreement at the time of
such merger, consolidation or transfer may remain outstanding, or the Voting
Trustees may, in their discretion, substitute for such Voting Trust Certificates
new Voting Trust Certificates in appropriate form, and the terms "Shares" and
"stock" as used herein shall be deemed to include any stock having voting powers
which may be received by the Voting Trustees in connection with such merger,
consolidation or transfer. Any other moneys, securities, rights or property
received by the Voting Trustees in connection with such merger, consolidation or
transfer to which the beneficial owners of the Shares deposited hereunder are
entitled shall be distributed promptly by the Voting Trustees among the holders
of Voting Trust Certificates in proportion to their interests, as shown by the
transfer books of the Voting Trustees, and in no event shall the Voting Trustees
accumulate or reinvest any such moneys, securities, rights or property.
9. TRANSFER OF SHARES.
(a) In the event of a proposed transfer of all or any part of
the Shares by a holder of a Voting Trust Certificate to a transferee other than
AXA or any other person to which the transfer of Voting Trust Certificates would
be permissible pursuant to Paragraph 15, such holder shall deliver to the Voting
Trustees written notice of such proposed transfer, along with a certification by
such holder of the intention of the holder to make such transfer and the Voting
Trust Certificates representing the Shares proposed to be transferred. The
certification shall be in such form as is determined by the Voting Trustees.
Within three days after the receipt of such notice and certification, the Voting
Trustees shall deliver to such holder certificates for the number and class of
Shares proposed to be transferred properly endorsed to the proposed transferees
and shall cancel the Voting Trust Certificates surrendered by such holder. The
Voting Trustees shall concurrently issue and deliver to such holder Voting Trust
Certificates for the balance of the Shares that were represented by the
surrendered Voting Trust Certificates. In the event that the proposed transfer
is not completed within five days following the delivery of such certificates to
such holder, the holder shall redeposit such certificates with the Voting
Trustees in accordance with the provisions of this Agreement and shall be issued
new Voting Trust Certificates with respect thereto.
(b) In the event that any shares of Other Preferred Stock are
deposited with the Voting Trustees hereunder, the Voting Trustees shall take
such actions as AXA shall request in order to enable AXA or any Investor Related
Party to deliver any or all of such shares to the Company in connection with any
exercise by AXA or such Investor Related Party of AXA's preemptive rights to
acquire certain securities of the Company under Section 2.3 of the Standstill
Agreement. Further, the Voting Trustees shall take such actions as the holders
of Voting Trust Certificates shall request in order to permit the redemption by
the Company of any Shares represented by the Voting Trust
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Certificates held by such holders. In addition, the Voting Trustees shall take
such actions as the holders of Voting Trust Certificates representing shares of
Convertible Preferred Stock shall request in order to permit such holders to
convert such shares into shares of Common Stock. In no event shall the Voting
Trustees deliver any Shares to the Company or to any other person under this
subparagraph (b) unless they have received Voting Trust Certificates
representing the Shares proposed to be delivered. The Voting Trustees shall
promptly issue and deliver to the appropriate holders Voting Trust Certificates
for the balance of any Shares represented by Voting Trust Certificates
surrendered by such holders. Any shares of stock of the Company having voting
powers that are acquired by any holders of Voting Trust Certificates as the
result of any action described in this subparagraph (b) will be deposited with
the Voting Trustees pursuant to Paragraph 1(b) hereof.
10. COMPENSATION OF VOTING TRUSTEES.
Each Voting Trustee shall receive for his services hereunder from
AXA the sum of $20,000 per annum, or such other amount as may be agreed in
writing by AXA and all the holders of the then issued and outstanding Voting
Trust Certificates. The Voting Trustees at the expense of AXA may employ,
consistent with their duties expressed in subparagraph 4(c) hereof, counsel and
such other assistance as they may deem necessary in the performance of their
functions.
11. TERM; RENEWAL; TERMINATION PROCEDURE.
(a) The Trust shall continue for a period of ten years from
the date of this Agreement, subject to the right of the parties to this
Agreement to renew the same as set forth below. Notwithstanding the foregoing,
the Trust and this Agreement may be terminated at any time by a written
instrument signed by the Voting Trustees and the holders of all the Voting Trust
Certificates, unless either Generali or Paribas then directly or indirectly
owns, controls or holds with the power to vote 10 percent or more of the voting
securities of any holder of Voting Trust Certificates that controls, within the
meaning of Section 1501(a)(2) of the New York Insurance Law, The Equitable or
EVLICO, in which case the prior written approval of the Superintendent shall
also be required. In addition, the Trust and this Agreement shall automatically
terminate when the Voting Trustees no longer hold any Shares hereunder. Further,
the Trust shall be freely revocable and this Agreement freely terminable by AXA
by notice to the Voting Trustees and the holders of Voting Trust Certificates
upon the earlier of (i) the date The Equitable and EVLICO are no longer licensed
by the Superintendent to do an insurance business in the State of New York and
(ii) the date the Company no longer directly or indirectly owns, controls or
holds with the power to vote 10 percent or more of the voting securities of The
Equitable or EVLICO. Except as otherwise provided herein, the Trust and this
Agreement shall not be terminable and Shares may not be withdrawn from the
Trust.
(b) At least six months prior to the termination of the Trust
pursuant to the first sentence of Paragraph 11(a), the Voting Trustees shall
mail written
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notice of such termination to the Superintendent and to the holders of the
outstanding Voting Trust Certificates, at their addresses as they appear on the
transfer books of the Voting Trustees.
(c) At any time after notice of the expiration of the Trust
and prior to the date of such expiration, one or more holders of Voting Trust
Certificates hereunder may, by agreement in writing with the Voting Trustees,
renew the Trust as to the Shares represented by their Voting Trust Certificates
for an additional period; PROVIDED that no such renewal agreement shall be
entered into without the prior written approval of the Superintendent. The
Voting Trustees shall, prior to the time of expiration of the Trust, deliver a
copy of the renewal agreement to the Superintendent and file copies thereof in
the registered office of the Company in the State of Delaware and in the office
of the Voting Trustees maintained for such purpose. Such renewal shall have the
effect of creating a new voting trust as to the Shares to which the renewal
applies, except that such Shares shall remain in the name and possession of the
Voting Trustees as if no termination had occurred. Such renewal shall have no
effect on the termination of the Trust as to the remaining shares of the Company
not subject to the renewal agreement, which shall be tendered in accordance with
the provisions relating to termination hereunder. No such renewal agreement
shall extend the term of this Agreement beyond the maximum period permitted by
applicable law or affect the rights or obligations of persons not parties
thereto.
(d) Upon termination of the Trust, the Voting Trust
Certificates shall cease to have any effect, and the holders of such Voting
Trust Certificates shall have no further rights under this Agreement other than
to receive (i) certificates for Shares or other property distributable under the
terms hereof upon the surrender of such Voting Trust Certificates and (ii) any
dividends or distributions paid to the Voting Trustees in contravention of their
instructions to the Company as described herein. Promptly after the termination
of the Trust, the Voting Trustees shall deliver to the holders of Voting Trust
Certificates, at their addresses as they appear on the transfer books of the
Voting Trustees, properly endorsed certificates for the number and class of
Shares represented by the Voting Trustee Certificates actually received from
them and thereafter the Voting Trustees shall have no responsibility or
liability with respect to the Shares, other than with respect to any such
dividends or distributions.
12. LIABILITY OF VOTING TRUSTEES.
The Voting Trustees shall exercise their best judgment in voting the
Shares or otherwise in acting hereunder but shall not be liable to any person
hereunder for any thing done or suffered or omitted in connection therewith
except for their own individual willful misconduct or gross negligence. No
Voting Trustee shall be required to give any bond or other security for the
discharge of his duties.
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13. INDEMNIFICATION.
AXA shall indemnify and hold harmless each Voting Trustee and his
executors, administrators and heirs from and against any and all liabilities,
obligations, losses, damages, penalties, taxes, claims, suits, costs, expenses
or disbursements (including without limitation legal fees and expenses) of any
kind and nature ("Losses") resulting from or arising out of this Agreement or
the enforcement of any of the terms hereof or in any way relating to or arising
out of the administration of the Trust or the action or inaction of such Voting
Trustee hereunder, except to the extent that any such Losses arise out of or
result from the individual willful misconduct or gross negligence of such Voting
Trustee in the performance of his duties hereunder.
14. FORM OF VOTING TRUST CERTIFICATES.
The Voting Trust Certificates shall be in the following form:
No. ...................... Shares
[Describe class of stock]
..............................
THE EQUITABLE COMPANIES INCORPORATED
A DELAWARE CORPORATION
VOTING TRUST CERTIFICATE FOR STOCK
This certificate is issued, received and held under, and the
rights of the holder hereof are subject to, the terms of a Voting
Trust Agreement dated as of May 12, 1992 (the "Voting Trust
Agreement"), by and among AXA, a corporation organized under the
laws of France ("AXA"), and the Voting Trustees identified therein
(and their successors in trust), and the holder of this certificate,
by acceptance hereof, assents and is bound to all the provisions of
such Voting Trust Agreement as if such Voting Trust Agreement had
been signed by him in person.
THE RIGHTS OF THE HOLDER TO TRANSFER THIS VOTING TRUST
CERTIFICATE ARE SUBJECT TO AND LIMITED BY THE TERMS AND CONDITTONS
OF THE VOTING TRUST AGREEMENT. A COPY Of SUCH AGREEMENT MAY BE
EXAMINED AT THE REGISTERED OFFICE OF THE EQUITABLE COMPANIES
INCORPORATED, A DELAWARE CORPORATION (THE "COMPANY"), IN THE STATE
OF DELAWARE OR IF NOT ON FILE AT SUCH OFFICE WILL BE FURNISHED BY
THE VOTING TRUSTEES TO EACH HOLDER WHO REQUESTS A COPY.
This certifies that __________________________ or registered
assigns is entitled to all the benefits arising from the deposit
with the Voting Trustees under the Voting Trust Agreement of
certificates for shares of the stock of the Company as provided in
the Voting Trust
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Agreement and subject to the terms thereof. Until the Voting
Trustees shall have delivered the stock held under the Voting Trust
Agreement to or as directed by the holders of the Voting Trust
Certificates as provided in the Voting Trust Agreement, the Voting
Trustees shall possess and shall be entitled to exercise all rights
and powers of a registered owner of such stock, including the right
to vote thereon for every purpose, and to execute consents in
respect thereof for every purpose, it being expressly stipulated
that no voting right passes to the holder hereof, or his assigns,
under this certificate or any agreement, express or implied.
Under the Voting Trust Agreement, the holder hereof is
required to deposit any shares of stock of the Company having voting
powers which are acquired by the holder with the Voting Trustees
under the Voting Trust Agreement.
The Voting Trustees shall instruct the Company to pay all
dividends and distributions upon the shares deposited with the
Voting Trustees, other than any dividend or distribution paid in
shares of stock of the Company having voting powers, directly to the
holders of the Voting Trust Certificates. Such dividend or
distribution shall be paid to such holders ratably, in accordance
with the number and class of shares represented by their respective
Voting Trust Certificates.
If any dividend or distribution in respect of the shares
deposited with the Voting Trustees is paid, in whole or in part, in
shares of stock of the Company having voting powers, the Voting
Trustees shall hold, subject to the terms of the Voting Trust
Agreement, the certificates for such shares that are received by
them on account of such dividend or distribution, and the holder of
each Voting Trust Certificate representing shares on which such
dividend or distribution has been paid shall be entitled to receive
a Voting Trust Certificate issued under the Voting Trust Agreement
for the number and class of shares so paid with respect to the
shares represented by such Voting Trust Certificates.
Holders of Voting Trust Certificates entitled to receive the
dividends or distributions, or Voting Trust Certificates in respect
thereof, described herein shall be those holders registered as such
on the transfer books of the Voting Trustees at the close of
business on the day fixed by the Company for the taking of a record
to determine those holders of its stock entitled to receive such
dividends or distributions.
In the event of the dissolution or total or partial
liquidation of the Company, the Voting Trustees shall instruct the
Company to make any distribution of moneys, securities, rights or
property in respect of the shares deposited with the Voting Trustees
directly to the holders of the Voting Trust Certificates in
proportion to their interests, as shown by the transfer books of the
Voting Trustees, and the Voting Trustees shall
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distribute to such holders any amounts received by the Voting
Trustees in contravention of such instructions.
Stock certificates for the number and class of shares of stock
then represented by this certificate shall be due and deliverable
hereunder upon the termination of the Voting Trust as provided in
the Voting Trust Agreement.
The Voting Trust Agreement shall continue in full force and
effect for a period of ten years from the date of the Voting Trust
Agreement (subject to renewal), unless the Voting Trustees no longer
hold any stock pursuant to the provisions of the Voting Trust
Agreement or the Voting Trust Agreement and the Voting Trust are
terminated by a written instrument signed by the Voting Trustees and
the holders of all the Voting Trust Certificates, upon the written
approval of the New York Superintendent of Insurance if required
under the Voting Trust Agreement. In addition, the trust may be
revoked and the Voting Trust Agreement terminated by AXA under the
circumstances described in the Voting Trust Agreement. The Voting
Trust Agreement may be renewed for successive periods, as provided
therein. Subject to the restrictions on transfer contained in the
Voting Trust Agreement, this certificate is transferable on the
books of the Voting Trustees at their office maintained for that
purpose, the location of which shall be designated by the Voting
Trustees by notice from time to time, by the holder hereof, either
in person or by attorney duly authorized, in accordance with the
rules established for that purpose by the Voting Trustee and on
surrender of this certificate properly endorsed. Title to this
certificate when duly endorsed shall, to the extent permitted by law
and the Voting Trust Agreement, be transferable with the same effect
as in the case of a negotiable instrument. Each holder hereof agrees
that delivery of this certificate, duly endorsed by such holder,
shall vest title hereto and all rights hereunder in any transferee
permitted under the Voting Trust Agreement; PROVIDED, HOWEVER, that
the Voting Trustees may treat the registered holder hereof as the
absolute owner hereof, and of all rights and interests represented
hereby, for all purposes whatsoever, and the Voting Trustees shall
not be bound or affected by any notice to the contrary or by any
notice of any trust, whether express, implied or constructive, or of
any charge or equity respecting the title or ownership of this
certificate, or the shares of stock represented hereby; PROVIDED,
HOWEVER, that no delivery of stock certificates hereunder shall be
required without surrender hereof properly endorsed.
This certificate shall not be valid for any purpose until duly
signed by the Voting Trustees.
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The word "Voting Trustees" as used in this certificate means
the Voting Trustees or any successor Voting Trustees acting under
such Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustees have signed this
certificate on __________________, ____.
_________________________
Voting Trustee
_________________________
Voting Trustee
_________________________
Voting Trustee
(Form of Assignment)
FOR VALUE RECEIVED ________________ hereby assigns the within
certificate, and all rights and interest represented thereby, to
__________ and appoints __________ attorney to transfer this
certificate on the books of the Voting Trustees mentioned therein,
with full power of substitution.
___________________________________________________________
Dated
Note: The signature on this assignment must correspond with the name
as written upon the face of this certificate in every particular,
without alteration, enlargement or any change whatever.
15. TRANSFER OF CERTIFICATES.
(a) The Voting Trust Certificates may not be transferred to
any person other than AXA, any Investor Related Party or any Affiliate (as such
term is defined in the Investment Agreement) of AXA which, if not an Investor
Related Party, agrees or has agreed in writing pursuant to the Standstill
Agreement to be bound by the Standstill Agreement as if it were AXA.
Notwithstanding the foregoing, in no event shall a Voting Trustee purchase,
sell, own, hold or deal in Voting Trust Certificates. Subject to the foregoing
limitations, the Voting Trust Certificates shall be transferable by the holders
thereof on the transfer books of the Voting Trustees at their office maintained
for such purpose, the location of which they shall designate by notice from time
to time, according to the rules established for that purpose by the Voting
Trustees, and the Voting Trustees may treat the registered holders as owners
thereof for all purposes whatsoever, except that they shall not be required to
deliver stock certificates hereunder without the surrender of such Voting Trust
Certificates.
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(b) If a Voting Trust Certificate is lost, stolen, mutilated
or destroyed, the Voting Trustees, in their discretion, may issue a duplicate of
such certificate upon receipt of: (i) evidence of such fact satisfactory to
them; (ii) indemnity satisfactory to them: (iii) the existing certificate, if
mutilated: and (iv) their reasonable fees and expenses in connection with the
issuance of a new Voting Trust Certificate.
16. NOTICES.
(a) Unless otherwise in this Agreement specifically provided,
any notice to or communication with any holder of Voting Trust Certificates
other than AXA may be sent by mail, either regular, registered or certified with
return receipt requested, addressed to such holder at its address appearing on
the transfer books of the Voting Trustees.
(b) Any notice to AXA hereunder may be sent by registered or
certified mail, return receipt requested, to AXA addressed as follows:
Secretaire General, AXA, 00, xxxxxx Xxxxxxxx, 00000 Xxxxx, Xxxxxx.
(c) Any notice to all of the Voting Trustees hereunder may be
sent by registered or certified mail, return receipt requested, addressed to
them at their office maintained for such purpose as designated by notice from
time to time. Any notice from one Voting Trustee to the other Voting Trustees
may be made in person or by mail or facsimile to them at their addresses as they
appear in this Agreement, or at any other address as may be designated by notice
from time to time.
(d) All distributions of cash, securities or other property
hereunder by the Voting Trustees to the holders of Voting Trust Certificates may
be made in the same manner as hereinabove provided for the giving of notices to
the holders of Voting Trust Certificates.
(e) All notices concerning amendments, extensions or the
termination of this Agreement or concerning the death, incapacity, resignation
or disqualification of any of the Voting Trustees shall also be delivered to the
Superintendent.
17. CONTINUING AGREEMENT.
All Voting Trust Certificates issued as herein provided shall be
issued, received and held subject to all the terms of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without regard to the
principles of conflict of laws, except to the extent the General Corporation Law
of the State of
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Delaware is mandatorily applicable to the subject matter of any provision of
this Agreement.
19. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
20. COMPLETE AGREEMENT.
This Agreement contains the entire understanding of the parties
hereto with respect to the matters covered hereby, except that this Agreement
shall not supersede or otherwise modify in any respect any agreement of the
parties hereto contained in the Standstill Agreement or the Investment
Agreement.
21. AMENDMENTS AND WAIVERS.
At any time prior to the termination of this Agreement, the Voting
Trustees, AXA and the holders of Voting Trust Certificates may, by written
agreement, amend or waive any of the provisions hereof; PROVIDED that any such
amendment or waiver may only be made with the prior written consent of the
Superintendent.
22. HEADINGS; INTERPRETATION.
The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. As used in this Agreement, any reference to stock of the Company
"having voting powers" shall refer to Company Common Stock, Convertible
Preferred Stock, Other Preferred Stock and any other stock of the Company having
the power to vote in the election of directors of the Company, including without
limitation any stock having such power only upon the occurrence of a default or
any other extraordinary contingency.
23. GENDER AND NUMBER.
In this Agreement, unless the context otherwise requires, the
masculine, feminine and neuter genders and the singular and the plural include
one another.
24. REMEDIES.
In the event of any breach of this Agreement, in addition to any
legal remedies to the extent allowed by law, in recognition of the fact that
remedies at law would not be sufficient, the parties hereto shall be entitled to
equitable remedies, including without limitation specific performance and
injunctive relief.
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25. FURTHER INSTRUMENTS.
Each party shall from time to time execute and deliver such further
instruments as any other party may reasonably request to effectuate the intent
of this Agreement.
26. FILING IN REGISTERED OFFICE.
The Voting Trustees shall file or cause to be filed this Agreement,
any amendment or renewal of this Agreement and any counterpart hereof executed
by a successor Voting Trustee in the registered office of the Company in the
State of Delaware.
27. NON-WAIVER OF RIGHTS AND BREACHES.
No failure or delay of any party hereto or any holder of a Voting
Trust Certificate in the exercise of any right given to such party or such
holder hereunder shall constitute a waiver thereof unless the time specified
herein for the exercise of such right has expired, nor shall any single or
partial exercise of any right preclude any other or further exercise thereof or
of any other right. The waiver by a party hereto or any holder of a Voting Trust
Certificate of any default of any party hereto or any such holder shall not be
deemed to be a waiver of any subsequent default or other default by such party
or such holder or any other party or holder.
28. TRANSFER OF SHARES.
The Voting Trustees shall not have any power to sell, assign,
transfer, encumber, pledge, grant any security interest in, or consent to the
placement of any lien upon or against the Shares, except for transfers of such
Shares upon the merger or consolidation of the Company with another corporation
and otherwise as specifically provided in this Agreement.
29. BENEFICIARIES.
This Agreement is for the exclusive benefit of the parties hereto
and the holders of Voting Trust Certificates and is not intended to confer any
rights on any other person except for the superintendent.
IN WITNESS WHEREOF, AXA and each Voting Trustee have signed this
Agreement as of the date first written above.
AXA
By: /s/ XXXXXX XXXXXX
-------------------------------
Title: CEO
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VOTING TRUSTEES:
/s/ XXXXXX XXXXXX /s/ XXXXXXX XXXXXXX
----------------------------- ---------------------------------
Signature Signature
XXXXXX XXXXXX XXXXXXX XXXXXXX
----------------------------- ---------------------------------
Name Name
XXXXX XXXXXXXXXXXX, 00000 XXXXXXXX
----------------------------- ---------------------------------
Address Address
/s/ XXXXX XX XXXXXXXX TONNERRE
------------------------------------------
Signature
XXXXX XX XXXXXXXX TONNERRE
------------------------------------------
Name
0, XXXXXX XXX XXXX 00000 XXXXX
------------------------------------------
Address
