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 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
"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
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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.
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
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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.
(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
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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 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 the Voting Trustees
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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 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
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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 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
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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
EVILCO, 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 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 he 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.
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(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.
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
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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 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 on 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 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
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paid shall be entitled to receive a Voting Trust Certificate
issued under tbe 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 sball 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 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
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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.
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 VALUED 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
12
Trust Certificates shall he 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 he 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,
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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 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.
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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 Certil1cate 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:-------------------------------------
Title: Xxxxxx de La Martiniere
Chief Financial Officer and
Member of the Management Board
VOTING TRUSTEE:
/s/ Xxxxxx de La Martiniere
----------------------------------- ------------------------------------
Signature Signature
Xxxxxx Xxxxxx Henri de Castries
----------------------------------- ------------------------------------
Name Name
00 xxxxxx Xxxxxxxx 25 avenue Matignon
75008 Xxxxx, Xxxxxx 00000 Xxxxx, Xxxxxx
----------------------------------- ------------------------------------
Address Address
15
/s/ Francoise Colloc'h
---------------------------------------
Signature
Francoise Colloc'h
---------------------------------------
Name
00 xxxxxx Xxxxxxxx
00000 Xxxxx, Xxxxxx
---------------------------------------
Address
