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Exhibit 15
AMENDED AND RESTATED
VOTING TRUST AGREEMENT
This AMENDED AND RESTATED VOTING TRUST AGREEMENT (this
"Agreement"), dated as of May 12, 2002, is entered into 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 predecessors or successors appointed pursuant hereto, the "Voting
Trustees").
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, on July 22, 1992 The Equitable was converted 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, pursuant 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 were exchanged for shares of the Common Stock, par
value $.01 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 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
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provided in a Voting Trust Agreement dated as of May 12, 1992 and amended by
Amendment No. 1 dated as of January 22, 1997 (the "Original Voting Trust
Agreement");
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;
WHEREAS, pursuant to Paragraph 11(a) of the Original Voting
Trust Agreement, the 10 year term of the Original Voting Trust Agreement is due
to expire on May 12, 2002;
WHEREAS, it is the desire of AXA and the Voting Trustees to
renew the terms of the Original Voting Trust Agreement for an additional 10
years by way of this Agreement;
WHEREAS, AXA and the Voting Trustees have complied with the
renewal requirements set forth in Paragraph 11(c) of the Original Voting Trust
Agreement, which include having received the Superintendent's approval of the
form of this Agreement; and
WHEREAS, the sole purpose of this Agreement is to hereby renew
the terms of the Original Voting Trust Agreement for another 10 years.
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
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"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) 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.
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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 not 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.
(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.
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(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 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
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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 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.
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(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 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.
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 shall 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 term "Company" for all purposes of this Agreement
shall be deemed to include such
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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
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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 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
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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 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 Trust 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.
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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.
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 an Amended and Restated Voting Trust Agreement dated as of
May 12, 2002 (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
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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
CONDITIONS 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 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
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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
Certificate.
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 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
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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 Trustees 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.
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This certificate shall not be valid for any purpose
until duly signed by the Voting Trustees.
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,
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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.
(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
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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 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. COMPETE 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
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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.
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
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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 de La Martiniere
-----------------------------------------
Xxxxxx de La Martiniere
Title: Chief Financial Officer and
Member of the Management Board
VOTING TRUSTEE:
/s/ Xxxxxx Xxxxxx /s/ Henri de Castries
-------------------------------- --------------------------------
Signature Signature
Xxxxxx Xxxxxx Henri de Castries
-------------------------------- --------------------------------
Name Name
00 xxxxxx Xxxxxxxx 25 avenue Matignon
75008 Xxxxx, Xxxxxx 00000 Xxxxx, Xxxxxx
----------------------- ----------------------------
Address Address
/s/ Francoise Colloc'h
--------------------------------
Signature
Francoise Colloc'h
--------------------------------
Name
00 xxxxxx Xxxxxxxx
00000 Xxxxx, Xxxxxx
--------------------------------
Address
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