EXHIBIT 10.2
[COMPOSITE CONFORMED COPY]
COOPERATION AGREEMENT dated as of July 18, 1991,
among THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES, a New York mutual life insurance company
(the "Company"), THE EQUITABLE COMPANIES INCORPORATED,
a Delaware corporation (the "Holding Company"), and
AXA, a corporation organized under the laws of France
(the "Investor"), as amended by Amendment No. 1 dated
as of November 27, 1991.
WITNESSETH:
WHEREAS the Company and the Investor desire to create a global
insurance enterprise and to share their respective experience in the field of
life insurance;
WHEREAS concurrently with the execution and delivery of this
Agreement, the Company, the Holding Company and the Investor are entering into
an Investment Agreement dated as of the date hereof (the "Investment
Agreement"), pursuant to which the Investor has agreed to make a substantial
investment in the Company; and
WHEREAS the Investor, the Company and the Holding Company wish
to establish a long-term cooperative relationship and, in connection therewith,
wish to establish the terms for the sharing of certain personnel, training and
information by the Company and the Investor, and for other long-term
arrangements among the Holding Company, the Company and the Investor.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
COOPERATION
SECTION 1. GOOD FAITH COOPERATION. In order to enhance their
respective businesses, the Company, the Holding Company and the Investor agree
to cooperate and to cause their respective Subsidiaries to cooperate in good
faith in the field of life insurance in order to provide each other with a
better understanding of their
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respective insurance markets, insurance and annuity products and operations
(including, without limitation, any significant new developments relating to any
of the foregoing). The parties further agree to cooperate in good faith in order
to achieve the expansion of their respective life insurance businesses and the
development of joint life insurance operations. In addition, the Parties agree
to cooperate in the field of asset management and financial services. This good
faith cooperation will be accomplished through the formation of a cooperation
committee and operations committees as set forth in Article II, the exchange of
staff as set forth in Article III and other projects and means to be developed
and established by the parties.
ARTICLE II
ESTABLISHMENT OF COMMITTEES
SECTION 2.1. COOPERATION COMMITTEE AND PROJECT TEAMS. (a)
Promptly after the date hereof, the Company and the Investor shall jointly
establish a committee (the "Cooperation Committee") through which they shall
maintain ongoing contact. The Cooperation Committee shall consist of an equal
number of representatives of each of the Company and the Investor and shall
initially consist of a total of eight members. The total number of members may
be expanded or contracted by agreement of the parties. All members shall be
senior executives of the respective parties. The Cooperation Committee shall be
co-chaired by two members of such Committee, one selected by the investor and
one selected by the Company, who shall be in charge of jointly conducting the
meetings and coordinating the activities of the Cooperation Committee. The
Cooperation Committee shall in addition have a Secretary who need not be a
member who shall be appointed to convene meetings and take minutes. The mission
of the Cooperation Committee shall be to oversee and enhance the cooperation
between the Company and the Investor in accordance with the terms of this
Agreement. The Cooperation Committee shall accomplish this objective through
regular meetings, to be held at least every quarter and on an alternating basis
at the headquarters of the Company in New York and of the Investor in Paris. The
Cooperation Committee shall prepare and issue each quarter a report on
cooperation achievements and goals for submission to and consideration by the
Board of Directors of each of the Company, the Xxxxxxx Company and the Investor.
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(b) The Cooperation Committee shall investigate the
possibility of, and shall carry out feasibility studies relating to, joint
projects and ventures between the Company and the Investor and their respective
Subsidiaries. Among other possible subjects, the Cooperation Committee shall
investigate the possibility of joint operations in foreign countries where
neither the Investor nor the Company nor their respective Subsidiaries has done
business to date. Such feasibility studies, when completed, shall be submitted
to senior management and, if necessary, the respective Boards of Directors of
each of the Company, the Holding Company and the Investor for the purpose of
determining whether to proceed with any proposed joint project or venture. In
the event the Company and the Investor mutually determine to proceed with such a
joint project or venture following completion of such a feasibility study, the
Cooperation Committee shall establish a project team to effect such joint
project or venture composed of representatives of the Company and the Investor.
No such joint project or venture shall be implemented before the Second Closing
without the approval of the appropriate governing bodies of the respective
parties and the consent of the New York Insurance Department.
(c) The Cooperation Committee shall set up an annual
cooperation program in furtherance of the goals of increased understanding and
expansion of business set forth in Article 1. Such annual cooperation program
shall include a sharing of information with respect to, among other items, in
the insurance area, market trends, consumer needs, statutory reserves and
liabilities, profitability by product and distribution channels. The cooperation
program shall also encompass the fields of asset management and financial
services, in which market trends and the feasibility of cross-development of
clients and of common products will be studied, and EDP systems, in which
know-how concerning enhancement of productivity and cost reduction will be
shared. The annual cooperation program shall be implemented by the appropriate
Operating Committee or Operating Committees established pursuant to Section 2.2.
SECTION 2.2 OPERATING COMMITTEES. Upon the date that is 120
days after the First Closing, the Company and the Investor shall establish
additional committees (the "Operating Committees") in each of the following
areas: strategy; finance and audit matters; asset management; actuarial matters
and products; marketing (including but not limited to issues relating to agents,
advertising and products); organization; human
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resources; public relations; and EDP systems. The Operating Committees will in
each case be composed of senior executives designated by the Investor and by the
Company who have significant responsibilities in their positions with the
Investor or one of its Subsidiaries (in the case of Investor designees) or with
the Company or one of its Subsidiaries (in the case of Company designees) in the
area to be addressed by the particular Operating Committee. Each Operating
Committee shall meet not less frequently than quarterly to discuss and monitor
developments in the parties' respective practices in the area for which that
Operating Committee has responsibility. The Operating Committees shall in
addition take such actions as the Cooperation Committee shall deem necessary to
implement the annual cooperation program and assist the Cooperation Committee in
accomplishing its goals; PROVIDED that until the Second Closing the Operating
Committees shall not take such actions without the consent of the New York
Insurance Department. Such actions may include, but shall not be limited to, the
preparation of studies for and reports to the Cooperation Committee.
ARTICLE III
EXCHANGE OF STAFF
SECTION 3.1. EXCHANGE OF STAFF. The Cooperation Committee
shall each year coordinate the exchange of staff of the Investor and the Company
and their respective Subsidiaries in order to provide on-site experience to each
party in the business of the other. Specific details as to the terms of such
exchanges will be agreed by the parties at the time of the exchange.
SECTION 3.2. SENIOR LEVEL ASSIGNMENTS. The Investor and the
Company from time to time after the First Closing shall agree on the assignment
by each of a reasonable number of its executives to the other party. Such
executives shall have full responsibilities consistent with their positions.
Such assignments, which will not be controlled by the Cooperation Committee,
will be for such reasonable terms as the parties shall determine, in each case
subject to reasonably satisfactory performance of duties by the individual. Each
party shall use all reasonable efforts to take any actions necessary to
facilitate the foregoing assignments, including but not limited to actions
necessary in connection with the tax and immigration laws
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of the United States and France. Each party shall reimburse the other for all
reasonable costs incurred in connection with the foregoing efforts. Until the
date that is 120 days after the First Closing, such exchange of executives shall
involve only a limited number of persons. Specific details as to the terms of
such assignments will be agreed by the parties at the time of such assignment,
although it is anticipated that the party to which an executive is assigned will
be responsible for the compensation of such executive.
SECTION 3.3. NO SOLICITATION. (a) Prior to the Second Closing
Date, the Investor shall not solicit or hire any of the employees of the Company
or the Holding Company with whom the Investor has had contact pursuant to this
Agreement, unless, at the time of such solicitation or hiring, such person had
not been an employee of the Company or the Holding Company or any affiliate of
the Company or the Holding Company for a period of at least six months.
(b) Prior to the Second Closing Date, neither the Company nor
the Holding Company shall solicit or hire any of the employees of the Investor
with whom either the Company or the Holding Company has had contact pursuant to
this Agreement, unless, at the time of such solicitation or hiring, such person
had not been an employee of the Investor or any affiliate of the Investor for a
period of at least six months.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. TERMINATION. Unless earlier terminated by mutual
agreement of the parties hereto, this Agreement shall terminate upon the
earliest to occur of (i) the termination of the Investment Agreement in
accordance with its terms, (ii) the date after the Second Closing Date when the
Investor and the Investor Related Parties cease to own in the aggregate Voting
Securities with Voting Power representing 25% or more of the Total Voting Power;
provided that, until the later of (a) if the notice referred to in the second
sentence of Section 1.2(c)(ii) of the Investment Agreement has been timely
given, the date that is six months after the Adjustment Date (or, if later,
the date on which all the conditions referred to in the proviso to the third
sentence of Section 1.2(c)(ii) of the Investment
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Agreement have been satisfied in full) and (b) the first annual meeting of the
Holding Company's stockholders after the Adjustment Date, the Investor and the
Investor Related Parties shall for purposes of this Agreement be deemed to own
Voting Securities with Voting Power representing 40% or more of the Total Voting
Power and (iii) September 30, 2001; PROVIDED that Sections 3.3 and 4.10 shall
survive in accordance with their terms and Section 3.3 shall survive until at
least March 1, 1992. As used in the preceding sentence, "Investor Related
Parties", "Voting Securities", "Voting Power" and "Total Voting Power" shall
have the meanings given them in the Standstill and Registration Rights
Agreement.
SECTION 4.2. SEVERABILITY. If any provision of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain in
full force and effect. The parties shall endeavor in good faith negotiations to
replace any invalid, illegal or unenforceable provision with a valid, legal and
enforceable provision, the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provision.
SECTION 4.3. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES.
This Agreement (together with the Investment Agreement and the Standstill and
Registration Rights Agreement) (a) constitutes the entire agreement and
understanding and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (b) is not intended to confer upon any person other than the parties any
rights or remedies hereunder.
SECTION 4.4. NOTICES. Any notice, demand, election, request,
consent or other communication required or permitted to be given hereunder shall
be in writing and shall be effective (a) when personally delivered or delivered
by telecopy on a Business Day during normal business hours (at the place of
receipt) at the address or number designated below or (b) on the second Business
Day following the date of mailing by
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overnight courier, fully prepaid, addressed to such address, whichever shall
first occur. The addresses for such communications shall be:
If to the Company:
General Counsel
The Equitable Life Assurance Society of the
United States
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
If to the Holding Company:
General Counsel
The Equitable Companies Incorporated
000 Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
in either case with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
If to the Investor:
Directeur General International
AXA
00, Xxxxxx Xxxxxxxx
00000 Xxxxx, Xxxxxx
Telecopy: 011--331-40 75 48 39
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Any party hereto may from time to time change its address for communications
under this Section 4.4 by giving at least 5 days (1) notice of such changed
address to the other parties hereto.
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SECTION 4.5. AMENDMENTS AND WAIVERS. This Agreement may not be
amended, supplemented or discharged, and none of its provisions may be modified,
except expressly by an instrument in writing signed by the party to be charged.
The parties hereto may amend this Agreement without notice to or the consent of
any third party. Any term or provision of this Agreement may be waived, but only
in writing by the party which is entitled to the benefit of that provision. No
waiver by any party of any default with respect to any provision, condition or
requirement hereof shall be deemed to be a continuing waiver in the future
thereof or a waiver of any other provision, condition or requirement hereof; nor
shall any delay or omission of any party in exercising any right hereunder in
any manner impair the exercise of any such right accruing to it thereafter.
SECTION 4.6. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, which together shall constitute but one instrument. It
shall not be necessary for each party to sign each counterpart so long as each
party has signed at least one counterpart.
SECTION 4.7. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors and
legal representatives. No party shall assign this Agreement or any rights
hereunder without the consent of the other parties.
SECTION 4.8. INTERPRETATION. When a reference is made in this
Agreement to a Section or Article, such reference shall be to a Section or
Article of this Agreement unless otherwise indicated or unless the context shall
otherwise require. 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.
SECTION 4.9. ARBITRATION. Each of the parties hereto hereby
agrees that all disputes arising in connection with or relating to this
Agreement that are not settled amicably shall be finally settled by arbitration
under the Rules of Conciliation and Arbitration of the International Chamber of
Commerce by three arbitrators. One arbitrator shall be appointed by the Company
or the Holding Company; one arbitrator shall be appointed by the Investor; and
the third arbitrator shall be appointed by the first two appointees or, if such
appointees cannot agree within 30 days of the appointment of the second such
arbitrator, by the
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President of the Court of Arbitration of the International Chamber of Commerce.
The foregoing agreement to arbitrate shall be specifically enforceable. Any
award rendered by the arbitrators shall be final and binding upon the parties,
and judgment upon such award, including any costs of arbitration, may be entered
in accordance with applicable laws in any court having jurisdiction thereof. All
arbitration proceedings shall be conducted, and all evidence shall be produced,
in the English language or in the French language with an English translation.
All arbitration proceedings shall be held in Geneva, Switzerland. For the
purpose of enforcing the foregoing agreement to arbitrate or any arbitration
award, the Investor agrees to submit to the jurisdiction of the courts of the
State of New York in the Borough of Manhattan or of the United States of America
for the Southern District of New York, and each of the Company and the Holding
Company agrees to submit to the jurisdiction of the courts of France.
Section 4.10. CONFIDENTIALITY. (a) In connection with the
preparation for and negotiation of the investment made by the Investor in the
Company, each of the Company, the Holding Company and the Investor has received,
and in connection with (i) Section 4.4 of the Investment Agreement and (ii) the
activities of the parties pursuant to this Agreement, each of the Company, the
Holding Company and the Investor will receive, from (in the case of the
Investor) the Company, the Holding Company and their subsidiaries (collectively,
the "Company Group") and their respective directors, officers, employees, agents
and representatives (with the Company Group, the "Company Parties") and from (in
the case of the Company and the Holding Company) the Investor and its
subsidiaries (collectively, the "Investor Group") and their respective
directors, officers, employees, agents and representatives (with the Investor
Group, the "Investor Parties"), financial and other information of the Company
Group and the Investor Group, respectively, concerning their respective
businesses and affairs ("Confidential Information"). As used herein,
"Confidential Information" shall not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by the
Investor Parties, in the case of information of the Company Group, or the
Company Parties, in the case of information of the Investor Group, or (ii) was
or becomes available to the Investor Parties or the Company Parties, as the case
may be, on a non-confidential basis from a source other than the Company Parties
or the Investor Parties, respectively or (iii) was lawfully within the
possession of the
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Investor Parties or the Company Parties, as the case may be, prior to its being
furnished to them by the Company Parties or the Investor Parties, respectively,
provided that, in the case of clauses (ii) and (iii), the source of such
information was not known to the Investor Parties or the Company Parties, as the
case may be, to be bound by a confidentiality agreement with any of the Company
Parties or the Investor Parties, respectively, in respect thereof.
(b) In the event that the Investment Agreement is terminated
in accordance with its terms, the Investor Parties or the Company Parties, as
the case may be, will, for a period of three years following the date of such
termination, keep all Confidential Information of the Company Group or the
Investor Group, respectively, confidential and will not disclose it to any third
party without the prior written consent of the Company or the Investor, as
applicable. In the event that the Investment Agreement is not terminated in
accordance with its terms, the Investor Parties or the Company Parties, as the
case may be, will, for a period of three years following the date such
Confidential Information first becomes known to any Investor Party or Company
Party, as the case may be, keep all Confidential Information of the Company
Group or the Investor Group, respectively, confidential and will not disclose
any of it to any third party without the prior written consent of the Company or
the Investor, as applicable. Notwithstanding the foregoing two sentences, any of
the Confidential Information may be disclosed without obtaining such prior
written consent (i) to any third party that is an Investor Party or a Company
Party, as applicable, at the time of such disclosure, (ii) as may occur as an
incidental result of the use of such Confidential Information in the business or
operations of the Investor Group or the Company Group, as the case may be, (iii)
as may be required by applicable law or legal process or (iv) as may be
necessary or desirable in connection with enforcing any rights under, or
pursuing any remedy for any breach of, the Transaction Agreements.
(c) The Investor, on the one hand, and the Company and the
Holding Company, on the other hand, agree that they will not disclose any
Confidential Information to any Investor Party or Company Party, as the case may
be, before informing such party of the confidential nature of such Confidential
Information and of the provisions of this Section 4.10 and such party has agreed
to keep such information confidential in accordance with such provisions. In any
event, the Investor, on the one hand, and the Company and the Holding company,
on the
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other hand, shall be responsible for any use of the Confidential Information by
any Investor Party or any Company Party, respectively, that violates the
provisions of this Agreement applicable to such party.
(d) In the event that the Investment Agreement is terminated
in accordance with its terms, the parties will use their best efforts to cause
all documents supplied by any Investor Party or Company Party, as the case may
be, which contain Confidential Information to be returned to the Company or the
Holding Company, on the one hand, or to the Investor, on the other hand, or
destroyed, and to cause all documents, notes, memoranda or other writings
containing Confidential Information which were prepared by the recipient of such
Confidential Information or a Related Party to be destroyed. As used herein,
"Related Party" shall mean, with respect to any Investor Party, any other
Investor Party, and with respect to any Company Party, any other Company Party.
(e) Notwithstanding any other provision of this Section 4.10,
each party hereto agrees that during the applicable confidentiality period set
forth in subsection (b) above, neither it nor any Related Party shall use any
Confidential Information received by it in a manner which directly competes
with, in the case of use by a member of the Investor Group, any member of the
Company Group, and in the case of use by a member of the Company Group, any
member of the Investor Group.
(f) In the event that any member of the Investor Group or any
member of the Company Group is required to disclose any Confidential Information
received by it by law or legal process as described in subsection (b)(iii)
above, it will provide the Company or the Investor, as applicable, with written
notice so that such party may seek a protective order or other appropriate
remedy or waive compliance with the provisions of this Agreement. In the event
that such protective order or other remedy is not obtained, or that such party
waives compliance with the provisions of this Agreement, the entity which is so
required to make the disclosure shall furnish only that portion of the
Confidential Information which is legally required and will exercise its best
efforts to obtain reliable assurance that confidential treatment will be
accorded any Confidential Information so furnished.
(g) Any waiver by the Company of compliance with any aspect of
this Section 4.10 or consent by the
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Company pursuant to any provision of this Section 4.10 will also bind the
Holding Company.
SECTION 4.11. 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.
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SECTION 4.12. DEFINITIONS. All capitalized terms used herein
and not otherwise defined shall have the respective meanings given them in the
Investment Agreement.
IN WITNESS WHEREOF, the Company, the Holding Company and the
Investor have caused this Agreement to be duly executed by their respective
authorized officers as of the date hereof.
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
by /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman and Chief
Executive Officer
THE EQUITABLE COMPANIES
INCORPORATED
by /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman and Chief
Executive Officer
AXA
by /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: President Directeur
General
